On a regular basis over the last 10 years we have published on our website and through our quarterly newsletter legal updates of current cases which address relevant interview and interrogation issues. In this document we have attempted to categorize those hundreds of cases into a number of categories for easy reference. We will continue to update this list on a regular basis.

If you cannot find a case reference that specifically addresses one of your issues, please go to our home page at www.reid.com and click on the Search button on the home page and type in your inquiry.

(Investigator
should not be allowed to testify about the defendant's credibility)

In US v.
Hill (2014) the US Court of Appeals, Tenth Circuit, ruled that, "Admission
of expert opinion testimony as to defendant's credibility was plain error
warranting reversal of defendant's convictions for bank robbery and related
crimes, even though defendant did not testify, where expert's testimony did not
involve specialized psychiatric knowledge, but merely asserted opinion as to
veracity of explanation that jury was capable of resolving without expert
testimony, government's case against defendant was not strong, and there was
reasonable probability that but for expert's improper testimony, result of
defendant's trial would have been different."

From the court's opinion:

"Stanley Hill appeals following his conviction on several
charges related to the robbery of a bank. During trial, Charles Jones, a
special agent with the Federal Bureau of Investigation ("FBI"), testified as an
expert. Agent Jones stated that he was trained in "special tactics and ways to
identify [ ] deception in statements and truths in statements" and that in his
opinion, many of Stanley's ... answers were not worthy of
credence and "[did] not make sense." Jones claimed that Stanley displayed
evasive behaviors "common among the criminal element to keep law enforcement at
bay" during an interrogation. When asked about Stanley's statement that he
would rather die than face charges, Jones testified, "Never in my career have I
seen that with an innocent person." And when the prosecutor asked about
Stanley's repeated invocations of God in support of his truthfulness, Jones
stated, "My training has shown me, and more[ ]so my experience in all these
interviews, when people start bringing faith into validating [ ] their
statements, that they're deceptive. Those are deceptive statements."

Jones also testified about the interrogation of Stanley. He
stated that he had attended "two specialized courses in interrogation and
interviews, including the Reid school, which is a higher-level school of
interrogation and interviewing." He explained:

[T]he Reid school is designed to—as an interview
process and interrogation process; part of that is psychological as well. It's
much like your five-year-old children and how you can break down a story or you
understand what's going on during the process of that interview.

In the Reid school, you're trained on some special tactics
and ways to identify on deception in statements and truths in statements. That
school is a sought-after school for investigators and interviewers because of
the caliber of that training you do get towards that endeavor.

Jones further stated that he had conducted over a thousand interviews as an FBI
agent.

The prosecution asked, "in reference to [his] earlier
testimony regarding [his] training and experience in interrogating and
interviewing," what Jones "based on [his] training and experience" took from
the interrogation "as to [Stanley's] truthfulness." Jones responded:

[T]he most difficult thing to tell the difference in is
partial truths, ... something that's partly true, that's a lot harder to detect
than a flat-out lie or a convicting [sic] truth.

So during the course of that interview, we were able to, as
trained eyes, pick out that this isn't—these are partial truths, at best.
And several of those are—they're shown through things that are not
purposely said or done by the interviewee. They are responses that occur
naturally, that's a psychological thing that happens, that we don't control.

For example, in this case, and I've seen it in other
interviews, a mumbling of something that they don't want to talk about. You may
say, I was at the grocery store at three or whatever or whatever, and you will
go away from the question and just discount that as something you don't need to
know, Mr. Police Officer. And there was much of that going on throughout the
interview, for whatever, or whatever, and whatever with Mr. Stanley Hill's
interview, occurred on a continuous basis, just avoiding—it's a way to
avoid the question without just flat out saying, I'm not going to talk to you.

The
prosecutor then asked, "In reference to the substance of the responses that
were provided ... how does that factor into your observations of whether he's
being truthful or not?" She provided Stanley's claim that he planned to babysit
his step-sister at the East Pine home as an example of "the substance of
responses." Jones answered that Stanley's version of events "does not connect
[the] dots," "does not make sense," and was "not something that [he] viewed as
reasonable." Specifically, Jones doubted that if Stanley was going to be
"responsible for a child," he would immediately fall asleep "and never w[a]ke
up while somehow bank robbery money got stuffed in the oven drawer of your
house, and then the bank robbers ran away before the police could get there,
and you didn't hear anything, but you were waiting on somebody to arrive in
this unlocked house in north Tulsa."

Jones then identified several factors that contributed to
his opinion that Stanley was being untruthful during the interview. He noted
that after Stanley was told that police found items connected to the bank
robbery in the East Pine residence, Stanley's story ha[d] to change a little
bit. And prior to that, I wasn't sleeping that hard. After that, "to my
knowledge," "to my knowledge."

I can't question his knowledge. I cannot say, I know what
you knew. But he could evade the question by saying, "well, to my knowledge,"
because that's something I cannot corroborate. That is a move that is common
among the criminal element to keep law enforcement at bay and not be able to
determine the actual facts of what happened.

Jones also stated that Stanley's assertions that he "had no
will to live" were indicative of guilt, testifying: "I have not seen, in my
experience, an innocent person willing to die because they were talking with
police officers and FBI agents. Never in my career have I seen that with an
innocent person." He continued: "I also don't reasonably believe an innocent
person would want to die because they were being talked to by police officers.
It doesn't make sense to me." The prosecutor asked if, "in [Jones'] experience,
has it been a demonstration of consciousness of guilt that an individual will
want to die rather than tell the truth." Jones responded, "In my experience,
sometimes people believe death would be better than a long-term prison
sentence."

The prosecution also asked how Jones viewed Stanley's "call
on his faith or swearing to God" during the course of the interview. Jones
testified:

Beyond my own religious feelings towards what he was saying,
the training that I've received, that is a common way that somebody with guilt
will want to validate the story they're telling you. They can't validate it with
facts, so they hope they can get you to believe them, because they're trying to
validate their story through a supposed belief.

He may be a God-fearing man, I do not know that, but the
truth is the truth. You do not have to back the truth. When I'm asked a
question, is the car blue, the car is blue. I don't have to swear to God. I do
not have to bring religion into that statement. The truth is the truth.

My
training has shown me, and more[ ]so my experience in all these interviews,
when people start bringing faith into validating of their statements, that
they're deceptive. Those are deceptive statements.

Defense counsel did not make any objections during Jones' testimony about the
truthfulness of Stanley's statements. Jones was the final witness at trial.
During closing argument, the prosecutor referred the jury back to Jones'
testimony, stating that Jones "in scrutinizing this interview with Stanley Hill
... has to figure out what's truthful in this interview, what's he trying to
hide."

Stanley does not argue that Jones was unqualified to offer
the opinion he provided, but instead that the subject matter of his
testimony-the credibility of another person-may not be addressed by an expert
testifying under Rule 702. We agree. As this court made clear ... "[t]he
credibility of witnesses is generally not an appropriate subject for expert
testimony." ... There are several reasons for the prohibition against expert
testimony on other witness' credibility. Such testimony: (1) "usurps a critical
function of the jury"; (2) "is not helpful to the jury, which can make its own
determination of credibility"; and (3) when provided by "impressively qualified
experts on the credibility of other witnesses is prejudicial and unduly
influences the jury." Id. (citations omitted).

This
testimony plainly violated Rule 702 and our case law interpreting the rule.
Even if Agent Jones arguably had "specialized knowledge,"... , on the subject of
interrogations, his testimony on Stanley's credibility fails under Rule 702
because it "encroache[d] upon the jury's vital and exclusive function to make
credibility determinations, and therefore [did] not assist the trier of fact." ...
(quotation omitted). He simply informed the jury that Stanley's version of
events was unworthy of belief based on his opinion of what is generally
"reasonable." Click here for the complete decision.

In US v. Benedict
(2013) the US District Court, D. Minnesota, excluded the testimony of an expert
witness on the issue of witness credibility. In their opinion the District
Court stated the following:

"While Defendants argue that the proffered testimony of Dr. Neuschatz will
be helpful to the jury, the Court disagrees. Based on his affidavit, it appears
that Dr. Neuschatz would opine about the "persuasive" and
"corruptive" power of confession evidence--i.e., the evidence of
cooperating witnesses.... He avers, "Without expert assistance, jurors'
abilities to assess the veracity of a witness's testimony are extremely
limited." ... The Eighth Circuit has stated that

[b]ecause expert evidence can be both powerful and quite misleading, a trial
court must take special care to weigh the risk of unfair prejudice against the
probative value of the evidence under Fed.R.Evid. 403. It is plain error to
admit testimony that is a thinly veiled comment on a witness's credibility....

....... This is because "[w]eighing evidence and determining credibility
are tasks exclusive to the jury, and an expert should not offer an opinion
about the truthfulness of witness testimony."Click here for the
complete decision.

In US v.
Knapp (2013) the U.S. Air Force Court of Criminal Appeals stated that,
"The appellant contends on appeal that the prosecution improperly offered
testimony from Agent P that he could tell appellant was acting in a deceitful
and untruthful manner when discussing the sexual intercourse because (1) the
appellant would not make eye contact, (2) large red blotches would appear on
his face, and (3) his commentary became less detailed. He also argues the
military judge should have provided a curative instruction to the members on
their use of this testimony. When we put the challenged testimony in context
and consider the seven factors found in Jones,
we do not find its admission to be prejudicial error." Click
here for the complete decision.

In
State v. Miller(2012)
the Court of Appeals of Wisconsin ruled that
comments of detective during video-recorded interview with defendant which was
played for jury, stating that defendant was lying during the interview, did not
violate the Haseltine rule prohibiting a witness from giving an opinion on
whether another witness is telling the truth.

Relying on Haseltine, Miller contends the video should not have been played for
the jury because in it Primising tells Miller multiple times he is lying.....
Miller points out that Haseltine prohibits a witness from giving an opinion on
whether another witness is telling the truth because it invades the jury's role
as the sole determiner of credibility. We conclude that because the comments
made by Primising on the video were made in the context of a pretrial police
investigation and were not made as sworn testimony in court, the Haseltine rule
was not violated.Click here for the
complete decision.

In Washington v. Barr (2004) the
Washington Court of Appeals found that the testimony by a police officer that
in his opinion the behavior of the defendant suggested deception (which he
learned as part of the "Reid Investigative Technique") was, in
fact, impermissible testimony because it invaded the province of the jury. Click here for
the full decision.

In Commonwealth v. Molina (November 2014) the Pennsylvania Supreme Court
held that "the defendant's right against self-incrimination was violated
by use of his pre-arrest silence as substantive evidence of guilt." From
the Supreme Court's opinion, here are the case details.

"In this case, a jury convicted Michael Molina (Defendant) of third degree
murder and related crimes resulting from the savage beating of Melissa
Snodgrass (Victim), apparently as a result of drug debts owed by Victim to
Defendant.

The issue presented to this Court requires consideration of the Missing Persons
Unit detective's testimony and the prosecutor's closing arguments regarding the
early days of the investigation into Victim's disappearance. Following a lead
that Defendant was holding Victim against her will, the Missing Persons Unit
detective assigned to the case went to Defendant's house two days after
Victim's disappearance. Pamela Deloe, a second primary prosecution witness,
answered the door and asserted that neither Victim nor Defendant were at the
house. Accordingly, the detective left her card and asked that Defendant call
her. Later that day, Defendant called the detective.

The detective testified regarding the phone call from Defendant:

I asked him--well, before I could even ask him if he was aware of [Victim]
being missing, he stated to me that there were--that he didn't know where she
was. It was out on the street that someone said that he was involved in her
being missing and it wasn't him.

Notes of Testimony ("N.T."), Dec. 14-20, 2006, at 480. The detective
then inquired as to when Defendant had last seen Victim. He initially responded
that he had not seen her for a year and a half, but then he immediately
contradicted his statement, claiming instead that he had not seen her for three
months. Subsequent to this contradiction, the detective testified that she
asked him to come to the police station to speak to her and he refused:
A. Yes. After he stated that, I asked him if he could come into our office and
sit down and talk with me about the case, and he refused. He said he refused to
come in.

Q. So this contact that you had with him was over the telephone. Is that what
you're saying?

A. Yes, it was over the telephone.

... Defense counsel did not object to the reference to Defendant's refusal to
come into the office. In due course, the prosecution concluded its questioning
of the detective, and defense counsel did not pursue that issue in his
cross-examination...
During closing argument, the prosecutor accentuated Defendant's refusal to go
to the police station, and when defense counsel objected, the prosecutor stated
before the jury that it was not improper to comment on Defendant's pre-arrest
silence:

[Prosecutor:] Look also at what happened in terms of the police investigation in
this matter. Three days after this young lady goes missing, three days after
she goes missing, detectives are already knocking on the defendant's door
because of something they heard, maybe he was holding this person against their
[sic] will, and he calls the police back and is very defensive. I mean, before
a question's even asked, he denies any knowledge or any involvement with this
young lady. He makes contradictory statements to the police about when's the
last time that he saw her. First he says, "I saw her a year and a half
ago." Then he says, "I saw her three months ago." But most
telling, I think, is the fact that the officer invited him. "Well, come on
down and talk to us. We want to ask you some more questions about this incident,
your knowledge of this young lady," especially because he made these
contradictory statements. And what happens? Nothing happens. He refuses to
cooperate with the Missing Persons detectives. And why?

In February 2013, we placed the case on hold pending the decision of the United
States Supreme Court in Salinas v. Texas, which, inter alia,
raised a claim regarding the use of pre-arrest silence as substantive evidence.
As discussed below, the plurality decision of the High Court in that case did
not resolve the issue, but instead affirmed the use of the defendant's silence
in a fractured decision. Salinas v. Texas, --- U.S. ----, 133 S.Ct.
2174, 186 L.Ed.2d 376 (2013). Prior to hearing argument, we allowed the parties
to submit supplemental briefing addressing Salinas.

Salinas involved a defendant who was interviewed by police regarding a
double murder in Houston. At the time of the interview, Salinas had not been
arrested nor provided Miranda warnings. Initially, Salinas answered the
officer's questions. However, when the officers inquired whether the shotgun
shell casings recovered from the scene would match Salinas's gun, he
"[l]ooked down at the floor, shuffled his feet, bit his bottom lip,
cl[e]nched his hands in his lap, [and] began to tighten up." ....
"After a few moments of silence, the officer asked additional questions,
which petitioner answered."

While the High Court had accepted review in Salinas to resolve the split
between the lower courts regarding the applicability of the Fifth Amendment to
the use of a non-testifying defendant's precustodial silence as substantive
evidence of guilt, it eventually divided on how to resolve the case. Three
justices in the lead opinion did not speak to the use of pre-arrest silence as
substantive evidence and instead dismissed Salina's claims because "he did
not expressly invoke the privilege against self-incrimination in response to
the officer's question.".... Two concurring justices did not address the
issue of express invocation, but opined that "Salinas' claim would fail
even if he had invoked the privilege because the prosecutor's comments
regarding his precustodial silence did not compel him to give
self-incriminating testimony." .... Finally, four dissenting justices
determined that no ritualistic language was needed to invoke the right against
self-incrimination, which was implied by the circumstances, and concluded that
Salina's right was violated.... Accordingly, as three justices opined that
Salinas did not properly invoke his privilege and two justices concluded that
the privilege never applies to pre-arrest silence, five justices held that
Salinas should not obtain relief. Given the absence of a majority on any
rationale, the splintered decision, however, fails to provide guidance as to
whether pre-arrest silence is ever protected under the Fifth Amendment if
sufficiently invoked or what constitutes sufficient invocation of the right.

... As applied to this case, we determine that Defendant's actions in
affirmatively and definitively refusing to come to the police station and
ending the phone call were sufficient to invoke his right against
self-incrimination and are distinguishable from Salinas's temporary muteness
sandwiched between voluntary verbal responses to police questioning.
Defendant's invocation is clarified upon consideration of the circumstances of
the case. Regardless of whether Defendant had been officially designated a
suspect, the detective's testimony demonstrated that Defendant and the
detective were aware during the phone call that "[i]t was out on the
street that someone said that [Defendant] was involved in her being missing
." N.T., Dec. 14-20, 2006, at 480. Indeed, the prosecutor's closing
argument emphasized the detectives' suspicions, noting that three days after
Victim's disappearance, they were "knocking on the defendant's door
because of something they heard, maybe he was holding this person against their
[sic] will."... Moreover, it appears that the detective's suspicions were
further raised when Defendant contradicted himself in regard to when he had
last seen Victim, prompting her to request that he come to the station. Thus,
at the least, both parties to the phone call were aware that he was suspected
in the disappearance of Victim, even though the detective was unaware that the
case involved a murder. We conclude that refusing to come to the police station
to speak further with a detective and ending the phone call, in light of the
circumstances of the case, constitutes an invocation of his right against
self-incrimination, even absent a talismanic invocation of the constitutional
provision.

Accordingly, we conclude that our precedent, and the policies underlying it,
support the conclusion that the right against self-incrimination prohibits use
of a defendant's pre-arrest silence as substantive evidence of guilt, unless it
falls within an exception such as impeachment of a testifying defendant or fair
response to an argument of the defense."

In US v Goodpaster (December
2014) the US District Court, D. Oregon, ruled that "Goodpaster's motion to
suppress is granted, based on his "penalty situation" argument under Garrity
v. New Jersey, 385 U.S. 493 (1967), and its progeny." Eric Goodpastor
was an employee of the US Postal Service who was suspected of stealing parcels
containing prescription drugs mailed to veterans from the U.S. Department of
Veteran Affairs. Goodpastor confessed that he had become addicted to his pain
medication and, approximately a year and a half ago, had begun stealing
packages from the mail that contained medications belonging to and intended for
others. From the US District Court's opinion:

"In Garrity, a state employer questioning its employees informed
them of their right to remain silent--and that if they exercised it, they would
be fired.... Faced with the choice "either to forfeit their jobs or
incriminate themselves," the employees confessed... The Court held that
the state may not put its employees to such a choice and reversed their
convictions....

The Garrity rule has since been generalized to any situation in which
the government seeks to "impose substantial penalties because a witness
elects to exercise his Fifth Amendment privilege." ... Thus, "loss of
job, loss of state contracts, loss of future contracting privileges with the
state, loss of political office, loss of the right to run for political office
in the future, and revocation of probation all are 'penalties' that cannot be
imposed on the exercise of the privilege."

In this case, Goodpaster was subject to a regulation, 39 C.F.R. S 230.3(a),
requiring that he "cooperate with all audits, reviews, and investigations
conducted by the Office of Inspector General." The same regulation
provides that "failing to cooperate ... may be grounds for disciplinary or
other legal action." He was also subject to a workplace policy that
required him to "cooperate in any postal investigation, including Office
of Inspector General investigations" and that provided for
"appropriate disciplinary measures" should he not cooperate....

Where the state has created a penalty situation but wishes to elicit testimony
for use in criminal proceedings, it has an easy and effective remedy: Retract
the employment-related threat that created the penalty situation. The state
need only assure the employee, before it questions him, that he will not be
punished solely for asserting his Fifth Amendment privilege. This simple remedy,
frequently styled a " Garrity warning" in mimicry of the Miranda
warnings, has been recognized by both the executive branch and the federal
courts. See Wray Memorandum at 466 ("[W]hen a federal employee is
interviewed ... by an Office of Inspector General, the agents should provide
the employee with an advice of rights form ... commonly referred to as the ' Garrity
' warning.")....

The Supreme Court has not yet had occasion to decide what constitutes an
effective Garrity warning... But the government has several variations
at its disposal. The U.S. Department of Justice offered the following model
warning in an attachment to the Wray Memorandum:

*This is a voluntary interview. Accordingly, you do not have to answer
questions. No disciplinary action will be taken against you solely for refusing
to answer questions.

Wray Memorandum at 468. The U.S. Department of Veterans Affairs OIG, to which
SA Epperson belongs, provides the following, somewhat narrower warning:
If you refuse to answer the questions posed to you on the grounds that the
answers may tend to incriminate you, you cannot be removed (fired) solely for
remaining silent; however, your silence can be considered in an administrative
proceeding for any evidentiary value that is warranted by the facts surrounding
your case.

To summarize, when a government employee is questioned by his employer, the
Constitution does not require the government affirmatively to announce
"[w]hether [it] is wearing one hat or the other (or both)." ... But
here, by threatening to punish Goodpaster's silence (and not retracting that
threat), the Government donned the hat of employer. The Constitution holds it
to that choice. Goodpaster's statements are suppressed."

(Confession
rendered involuntary when defendant told he could not get a fair trial because
of his race)

In Bond v. State (May 2014) the Indian
Supreme Court ruled that the defendant's confession was rendered involuntary by
statements from the detective that due to the fact the defendant was African
American he might not receive a fair trial.

From the court's opinion: "But with respect to the
detective's statement that Bond might not receive a fair trial because of his
race and the likely composition of a prospective jury, our sentiment goes
beyond the trial court's "great concern" and the Court of Appeals majority's
disapproval of it as being "inappropriate." This is not a police tactic that we
simply "do not condone" because it is deceptive. Instead, this was an
intentional misrepresentation of rights ensconced in the very fabric of our
nation's justice system—the rights to a fair trial and an impartial jury,
and the right not to be judged by or for the color of your skin—carried
out as leverage to convince a suspect in a criminal case that his only recourse
was to forego his claim of innocence and confess. And like Judge Kirsch, we
condemn it.

... in this case Bond was intentionally deceived as to the fairness
of the criminal justice system itself because of the color of his skin.
Regardless of the evidence held against him or the circumstances of the alleged
crime, he was left with the unequivocal impression that because he was African
American he would spend the rest of his life in jail. Unless he confessed. And
in unfortunate days gone by, this might have been the case. But no one wants to
go back to such a time or place in the courtroom, and so we will not allow even
the perception of such inequality to enter the interrogation room.

Thus, in considering the totality of the circumstances
surrounding Bond's interrogation, despite the otherwise permissible conduct by
the detective, and despite Bond's apparent maturity, health, education, and the
favorable conditions of the interrogation, this deception by the detective tips
the scale to involuntariness."

In Halsey
v. Pfeiffer, et al. (April
2014) the US Court of Appeals, Third Circuit reversed the lower court's
decision to grant the appellees a summary Judgment on Halsey's coercion
claim.From the Court of Appeals
opinion:

"The facts underlying this appeal—many of which are
undisputed—are hardly believable. Plaintiff–Appellant, Byron
Halsey, a young man with limited education, learned that the two small children
for whom he had been caring had been tortured and murdered. He wanted to help
in the investigation of these heinous crimes but found himself isolated in a
police interview room, accused of the murders, told he had failed a polygraph
examination (that we now know he passed), and confronted with false
incriminating evidence. For a time he maintained his innocence, but, after
being interrogated for a period extending over several days, and in a state of
great fear, he signed a document purporting to be his confession to the crimes.
Subsequently, he was charged, indicted, convicted, and sentenced to prison for
two life terms. But his "confession" contained details that the investigators
must have inserted because Halsey could not have known them. And the real
killer, though he had a record of sexual assaults, was known to the police, and
was an obvious potential suspect as he lived in an apartment next to the one
that Halsey, the children, and their mother occupied, avoided arrest despite
nervously asking the investigating detectives whether he would be "locked up."
Finally, after 22 years the State of New Jersey released Halsey from prison,
not because trial error cast doubt on the result of his criminal trial, but
because it had been established beyond all doubt that he had not committed the
offenses. Except when an innocent defendant is executed, we hardly can conceive
of a worse miscarriage of justice.

After his release, Halsey filed this civil action under 42
U.S.C. S 1983 with supplemental state-law claims alleging that state
actors and entities involved in his prosecution had violated his constitutional
rights. The defendants included, inter alia, defendants-appellees Frank
Pfeiffer and Raymond Lynch, the two investigating police officers who Halsey
claims (1) fabricated the oral confession that led to the prosecutor filing
charges against him, (2) maliciously prosecuted him, and (3) coerced him into
signing the fabricated confession, which was the critical evidence at his
criminal trial. On appellees' motions for summary judgment, the District Court
entered judgment in their favor on all three claims on February 21, 2013,
because the Court believed that they had qualified immunity from Halsey's
claims. Halsey
v. Pfeiffer, Civ. No. 09–1138, 2013 WL 646200 (D.N.J. Feb. 21,
2013) ( Halsey ). Halsey then filed this appeal.

We will reverse and remand the case to the District Court
for further proceedings. First, we reaffirm what has been apparent for decades
to all reasonable police officers: a police officer who fabricates evidence
against a criminal defendant to obtain his conviction violates the defendant's
constitutional right to due process of law. Second, we reinstate Halsey's
malicious prosecution claim, principally because the prosecutor instrumental in
the initiation of the criminal case against Halsey has acknowledged that the
false confession that appellees claimed they obtained from Halsey contributed
to the prosecutor's decision to charge Halsey, and for that reason we will not
treat the decision to prosecute as an intervening act absolving appellees from
liability. Moreover, without that false confession, there would not have been
direct evidence linking Halsey to the crimes so that the prosecutor would not have
had cause to prosecute Halsey. Therefore, the District Court should not have
held on the motions for summary judgment that appellees had a probable cause
defense to Halsey's malicious prosecution claim. Third, we conclude that
because the evidence was sufficient for a rational jury to find that appellees,
who had interrogated Halsey for many hours, had coerced him into signing the
false confession, the Court should not have granted appellees a summary
judgment on Halsey's coercion claim."

In examining the coercion claim, the court stated, "The
final aspect of the disposition of appellees' motions for summary judgment that
we address is the dismissal of Halsey's claim that appellees coerced him into
adopting a confession that they fabricated and by doing so denied him due
process of law. The parties sharply dispute how we should resolve the appeal on
this issue because, on one hand, the record contains evidence that appellees
forced Halsey to sign the incriminating statement by overwhelming his will to continue
denying his involvement in the crime but, on the other hand, there is no
indication that appellees physically abused Halsey or even tricked him into
signing the statement. Our review of the record, considered in the light most
favorable to Halsey, convinces us that there is enough of a factual issue to
warrant the conclusion that the District Court should have denied the motions
for summary judgment on the coercion claim.

The District Court seemed to have viewed the interrogation
process as a string of separated events, beginning with appellees questioning
Halsey, proceeding with Propsner entering the room to review Halsey's
statement, and culminating with Halsey signing his confession. It appears that,
to the Court, appellees' conduct during the first stage of the process had no
bearing on the resolution of the coercion issue because Halsey signed the
confession later without objecting to the process's earlier aspects.

Our precedent forecloses the adoption of this
compartmentalized view of the interrogation process in which a court considers
the material events independently or disjunctively
rather than as connected episodes in an ongoing process. In United
States ex rel. Johnson v. Yeager, 327 F.2d 311, 314 (3d Cir.1963),
we reversed the denial of a habeas corpus petition that a defendant in state
custody, Wayne Godfrey, had filed. Godfrey had been interrogated for many
hours, deprived of sleep and counsel, and, contrary to state law, had not been
taken "promptly" for a hearing before a magistrate judge following his arrest.
The bulk of Godfrey's interrogation occurred over a night before he confessed
the next morning. Id.
at 313. Several police officers did the questioning, but they
ultimately took Godfrey to a chief detective officer in the morning to whom
Godfrey formally confessed. Id. That confession "proceeded smoothly and
without apparent reluctance on Godfrey's part." Id. We noted that if we
considered only the last aspect of the confession process in addressing the
coercion issue, we would have deemed the confession voluntary as the state
court had when it admitted the confession into evidence. Id. at 315. But
we rejected the conclusion of the state court and held that the "civil manner"
in which the chief detective treated the defendant could not have "cured or
made irrelevant the events of the preceding 21 hours."Id.

As
we held in Yeager, and as we reaffirm today, the compartmentalized view
of the interrogation process cannot be squared with settled Supreme Court
precedent. "[C]oercion may have a persisting invalidating effect upon a
confession," even when the confession is apparently made without "reluctance
[and] in response to civil questioning in pleasant
surroundings." Id. (citing Brown
v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936)
and Reck
v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948(1961)).
Thus, "[t]he events preceding the formal confession must be considered
as well as its immediately attendant circumstances." Id. at 313. ... Accordingly, Halsey's signature did not extinguish appellees'
alleged misconduct during the interrogation.

Our foregoing conclusion leaves us
with the question of whether appellees' misconduct could be found to have led
Halsey to make the confession. The pertinent facts on this issue, viewed in
light most favorable to Halsey, are compelling. Over the course of less than
two days, appellees detained Halsey, a man of limited intelligence and little
education, who was unaccompanied by a friend or an attorney, for about 30 hours
and questioned him almost continuously for about 17 of those hours, of which
about nine were highly confrontational, a period measured from the time
Pfeiffer took what Halsey called a "forceful" approach continuing to the time
that Halsey signed the confession. Appellees persisted in telling Halsey that
he was guilty, "hollering and screaming" at him,... despite
being aware of Halsey's mental limitations and despite Halsey's repeated
protestations of his innocence. Furthermore, Halsey cried and, according to
Pfeiffer, went into a trance towards the end of the interrogation. At that
point Halsey, who claims that he feared for his life, signed a statement in the
appellees' presence even though it included details that only the police and
the murderer could have known..... Overall, we are satisfied that Halsey
presented enough evidence to withstand the motions for summary judgment on the
coercion issue. It is true, as the District Court noted and as appellees repeat
in their briefs, that Halsey was not beaten, bribed, or threatened.
Furthermore, he was advised of his Miranda rights, and, at times, he was
given breaks when being questioned. Moreover, given his prior arrests, Halsey
had some familiarity in dealing with the police, though his record of repeated
arrests suggests that he took away very little from those experiences. In fact,
the record does not suggest that he was particularly comfortable in navigating
the criminal justice system.

But none of these reasons could
justify our affirming the order granting summary judgment. .... There is
no magic set of considerations that justifies the granting of summary judgment
on a coercion claim, for "a totality of the circumstances analysis does not
permit state officials to cherry-pick cases that address individual potentially
coercive tactics, isolated one from the other, in order to insulate themselves
when they have combined all of those tactics in an effort to overbear an
accused's will." Wilson, 260 F.3d at 953. When we weigh the factors
militating against and favoring a finding that Halsey's confession was coerced,
we are satisfied that rational jurors reasonably could find that Halsey was
coerced into signing the confession.Click
here for the complete decision.

(Combination of assertion the defendant's
daughter would suffer without an admission and an implied promise of leniency
yield involuntary confession)

In State
v. Ruiz-Piza (April 2014) the Court of Appeals of Oregon found that the
defendant's statements were not voluntarily made.The focus was on two issues: the officers' assertions that the medical
care received by defendant's daughter would suffer if he did not confess, and
the notion that he was induced to confess by an implied promise of
leniency.

In their analysis the court stated:

We begin with the issue of G's medical care; at the outset
we state our agreement with the parties that the record cannot reasonably be
read to reveal that the officers threatened to withhold medical care from G in
the absence of a confession, and we do not perceive that the trial court so
concluded. What the officers did do, however, was cultivate and leverage
defendant's fear that, unless he admitted to shaking her, G's medical care
would suffer.... Having made clear that G had serious medical issues that could
be ameliorated by a confession—an assertion that, as a matter of medical
fact, is without any support in the record—the
officers also appealed to defendant's paternal responsibilities, his religion,
stated that defendant was the only one who could help G, and stated, in
effect, that the way to provide that help was to tell the officers that he had
accidently shaken her.Those statements, taken in the
circumstances in which they were made, constituted an "inducement through * * *
fear" that was specifically calculated to capitalize on what the trial court
recognized as defendant's acute vulnerability.

As to the implied promise of leniency: When Hurley stated
"we have to have an explanation," a stark choice was put to defendant: either
confess to accidentally shaking G and—in addition to securing better
medical care—the officers would accept that version of events, or do not
confess, and allow the officers to assume that the child had been abused.
Whatever abstract legal distinction might exist between accidentally injuring a
child while shaking the child and "child abuse" is of no moment; the obvious
intent in drawing a distinction between the two alternatives was to induce
defendant to confess to less-serious conduct than it would be assumed that he
had committed in the absence of a confession. That the officers never
explicitly made a promise of leniency or immunity is not dispositive; the
effect of their approach was to tell defendant: "the only way to avoid having
the police conclude that you are a child abuser is to tell us that you
accidentally shook your daughter."

The Appeals court stated, "we do not decide whether either line
of police conduct, standing alone, would represent an insurmountable obstacle
to the state's effort to show that the statements were made voluntarily. When
the inducements discussed above are taken in view of each other and the
totality of the underlying circumstances of the interviews, we conclude that
the trial court did not err in concluding that the statements were made
involuntarily."Click
here for the complete decision.

(Interrogator's
statements that defendant's ability to "speak plainly,"
"face-to-face" with his "case agent" would be of limited
duration and, critically, would evaporate when "the lawyers [got]
involved" should be avoided, but do not create a coercive environment)
In US v. Shehadeh (2012) the
US District Court, E.D. New York, found that the investigator's statements to
the defendant that his ability to "speak plainly,"
"face-to-face" with his "case agent" would be of limited
duration and, critically, would evaporate when "the lawyers [got]
involved" should be avoided, but were not coercive. In their decision the
court stated the following:

"Essential to review are statements made to Shehadeh regarding his
consultation with counsel, especially those of Agent Tinning. Tinning candidly
admitted--and his contemporaneous notes confirm--that in the course of
explaining the right of a suspect in custody to have an attorney with him
during questioning, Tinning told Shehadeh his ability to "speak plainly,"
"face-to-face" with his "case agent" would be of limited
duration and, critically, would evaporate when "the lawyers [got]
involved." ... This followed discussion of cooperation and took place
during, not after, the advice of rights. Defendant argues that, under the
totality of the circumstances, this statement--followed by AUSA Kazemi's
"explanation" of the legal process--fundamentally misrepresented his
rights and coerced him into waiving them because these statements suggested any
opportunity to cooperate was conditioned on doing so before "the lawyers
get involved."

Surely, while not crossing the line as defendant protests, Agent Tinning's
brief, one-time commentary about the "effects" of asking for a lawyer
during post-arrest, custodial interrogation comes as close to the line
demarcated by Anderson as possible. This is especially true in light of
the subsequent appearance of AUSA Kazemi, whose in-custodial speech made clear
that Shehadeh's fundamental choice was between cooperation and conviction.
Unlike in Anderson, however, the Court finds that, under all the
circumstances, Tinning's commentary was neither false nor misleading.
Specifically, since Agent Tinning's colloquy with Shehadeh was actually true
and was not misleading ( i.e., he never told Shehadeh that
"cooperation" leading to a better result for him was not possible if
he asked for a lawyer), it does not support a finding of undue coercion. ....

The interrogation process employed, however, leaves much to
be desired. It was fraught with constitutional and other legal pitfalls. It is
to be avoided. Nonetheless, on the totality of the circumstances, the Court
finds the government has proved by a preponderance of the evidence that
Shehadeh's waiver was uncoerced, knowing and voluntary.Click here for the
complete decision.

(Interrogator deception that "crosses the
line")

In People v. Aveni (2012)
Supreme Court, Appellate Division, Second Department, New York the court stated
that "This case presents us with an opportunity to decide under what
circumstances the police, while interrogating a suspect, exceed permissible
deception, such that a suspect's statements to the police must be suppressed
because they were unconstitutionally coerced.

"Here, the defendant argues that his statements should be suppressed
because the detectives improperly deceived him when they explicitly lied to him
by telling him that Camillo was alive and that the physicians treating her
needed to know what drugs she had taken or else she could die, and implicitly
threatened him with a homicide charge by stating, "[I]f you lie to me and
don't tell me the truth now ... it could be a problem."

"In this case, the detectives coerced the defendant's confession by
deceiving him into believing that Camillo was alive and implicitly threatening
him with a homicide charge if he remained silent. The detectives used the
threat of a homicide charge to elicit an incriminating statement by essentially
telling the defendant that the consequences of remaining silent would lead to
Camillo's death, which "could be a problem" for him. Faced with this
Hobson's choice, the defendant had no acceptable alternative but to talk to the
police. By lying to him and threatening him, the detectives eviscerated any
sense the defendant may have had that he could safely exercise his privilege
against self-incrimination and put the People to their proof. Either he would
tell them what he knew or he would face the probability of life imprisonment if
Camillo died. In light of the detectives' implicit threat of a homicide charge
if the defendant remained silent, we cannot conclude that the defendant
voluntarily waived his Fifth Amendment privilege against self-incrimination. Click here for the
complete decision.

In Aleman v. Village of Hanover Park
(2011) the U.S. Court of Appeals, Seventh Circuit, found that the police acted
improperly during the interrogation of Aleman.

In their opinion the Court of Appeals stated that, "Aleman indicated a
desire for the assistance of counsel twice, and only after responding to
further police-initiated custodial interrogation did he agree to be questioned.
He said first "I gotta call my guy" (his lawyer) and after speaking
to him reported that the lawyer had told him not to speak to the police--yet
Micci continued to urge him to sign a Miranda waiver. Aleman invoked his right
to counsel the second time when he asked to call his lawyer again. He might
have done so a third time, but was prevented when Micci or Villanueva told him
to hang up and added, "I ask that you don't use the phone again until we
decide what we're gonna do." When a suspect invokes his right to counsel,
the police may not recommence questioning unless the suspect's lawyer is
present or the suspect initiates the conversation himself.

"There is more that was wrong with the interrogation than a violation of
Miranda. Micci induced Aleman's "confession" by lying to him about
the medical reports. The lies convinced Aleman that he must have been the cause
of Joshua's shaken-baby syndrome because, according to Micci, the doctors had
excluded any other possibility. (They had not.) The key statement in Aleman's
"confession" was that "if the only way to cause [the injuries]
is to shake that baby, then, when I shook that baby, I hurt that baby."
The crucial word is "if." By lying about the medical reports, Micci
changed "if" to "because" and thereby forced on Aleman a
premise that led inexorably to the conclusion that he must have been
responsible for Joshua's death; the lie if believed foreclosed any other conclusion.

"In this case a false statement did destroy the information required for a
rational choice. Not being a medical expert, Aleman could not contradict what
was represented to him as settled medical opinion. He had shaken Joshua, albeit
gently; but if medical opinion excluded any other possible cause of the child's
death, then, gentle as the shaking was, and innocently intended, it must have
been the cause of death. Aleman had no rational basis, given his ignorance of
medical science, to deny that he had to have been the cause.

The question of coercion is separate from that of reliability. A coerced
confession is inadmissible (and this apart from Miranda) even if amply and
convincingly corroborated... But a trick that is as likely to induce a false as
a true confession renders a confession inadmissible because of its
unreliability even if its voluntariness is conceded... If a question has only
two answers-- A and B--and you tell the respondent that the answer is not A,
and he has no basis for doubting you, then he is compelled by logic to
"confess" that the answer is B. That was the vise the police placed
Aleman in. They told him the only possible cause of Joshua's injuries was that
he'd been shaken right before he collapsed; not being an expert in shaken-baby
syndrome, Aleman could not deny the officers' false representation of medical
opinion. And since he was the only person to have shaken Joshua immediately
before Joshua's collapse, it was a logical necessity that he had been
responsible for the child's death. Q.E.D. A confession so induced is worthless
as evidence, and as a premise for an arrest."Click here for the
complete opinion.

In State
v. Knyceaulas (2010) the Court of Appeals of Arizona ruled that the
trial court erred in admitting the defendant's confession. Specifically, the
defendant contends the detective violated his rights under Miranda by
continuing to question him after he had requested to end the interview. The
following exchange took place during the interrogation:

Mr. Brown: So are-are you taking me to jail now or ... ?

Detective Hange: Am I taking you to jail right this minute? No, I'm not taking
you right this minute.

Mr. Brown: Am I under arrest?

Detective Hange: Right this minute, you're here on a physical detention. That's
this court order right here, and that court order is to get your DNA, which
we're going to do.

Mr. Brown: Okay. Can I do that and then go?

Detective Hange: Well, we'll get to that in a minute. Okay?

Mr. Brown: Because this is not-yeah. Can I do it and then go on?

Detective Hange: You don't want to talk to me?

Mr. Brown: Nah, not no more.

Detective Hange: Why?

Mr. Brown: Because I don't. Because you think you know everything.

Detective Hange: Well, you know I know. You know that.

Mr. Brown: Do I?

Detective Hange: Uh-huh. You know that I know. I'm not fishing here.
Kynceaulas, I'm not fishing. I don't fish. I don't believe in fishing.

Mr. Brown: Can we take my DNA and so I[can] go?

Detective Hange: Okay. We'll go ahead and get your DNA.

Mr. Brown: Please.

Detective Hange: That's not a problem.

Mr. Brown: Thank you.

Detective Hange: But you're going to go? I don't think so. I think you're
probably going to go to jail.

Mr. Brown: All right.

Detective Hange: All right?

Mr. Brown: Can I make my phone call?

Detective Hange: You'll get to make your phone call in due time. If you decide
you want to talk to me, I'm still around. I'm not going anywhere yet.

The Court of Appeals found that "Here, when the detective explicitly asked
whether Brown wished to continue talking, Brown answered, "Nah, not no
more." Our courts have held equivalent statements to be a clear invocation
of a suspect's Fifth Amendment rights.... The trial court therefore erred as a
matter of law to the extent it found Brown did not invoke his right to remain
silent."Click
here for the complete decision.

(Police statement that they were not going to
pursue any charges against the suspect, after advising him of his Miranda rights, renders the
confession involuntary)
In US
v. Lall (2010) the United States Court of Appeals, Eleventh Circuit,
found that the trial court was in error when they allowed the defendant's
confession into evidence. The Appeals Court stated that, "In this case,
Detective Gaudio gave Lall the Miranda warnings on the front lawn of the
house. Nevertheless, Gaudio testified that before he entered the bedroom, he
told Lall that he was not going to pursue any charges against him. Just as in
Hart, this representation contradicted the Miranda warnings previously
given. Indeed, this advice was far more misleading than that given in Hart. Our
holding there compels the conclusion that, as a result of Gaudio's statements,
Lall "did not truly understand the nature of his right against
self-incrimination or the consequences that would result from waiving it."

Moreover, as in Hart, the totality of the circumstances in this case also
bolster Lall's challenge to the propriety of his interrogation. The record
shows that during the interview with police, Lall was kept alone in his
bedroom, isolated from his family, and told that the purpose of any questioning
was to protect Lall's family from future harm. These undisputed facts, taken
together with Gaudio's representations, compel the conclusion that Lall did not
make a "voluntary, knowing and intelligent waiver of his privilege against
self-incrimination and his right to counsel." Click here for the
complete decision.

(Interrogator's repeated references that he
could help the suspect rendered the confession involuntary)

In Ramirez v. State (2009)
the District Court of Appeal of Florida, First District, the court found that
the interrogator's repeated statements that he could help the suspect were
improper. In part the District Court stated that "Here, the detective's
constant offers of unspecified help were improper. At one point, the detective
said to Appellant, "[I]f you want us to help you, you need to help us
also." This statement arguably constitutes an offer of a "quid pro
quo" bargain within the meaning of relevant case law. Because this
statement is not the only one at issue, however, we decline to reach that
conclusion definitively. Instead, we have determined that Appellant's statement
was induced by improper police conduct based on the totality of the
circumstances. In addition to making this questionable statement, the detective
strongly implied that he had some specific benefit in mind that he could confer
on Appellant. While offering this benefit that he would explain later, the
detective made references to immigration issues, the opportunity to "get
out of this," and arguably even the death penalty.

Additionally, when Appellant expressed the belief that the detective, as
"the law," could do anything he wanted with Appellant, the detective
did not clarify his position. The detective's failure to explain the limits of
his authority is one major factor that sets this case apart from other cases
upholding officers' suggestions that they could help defendants.....

Finally, Appellant's constant requests for the detective to give him more
details of how he could help, even in one instance demanding such an
explanation before giving an answer, show a preoccupation with the detective's
promises and an invited expectation of receiving a benefit in exchange for a
statement. Even though Appellant's preoccupation with the promises was readily
apparent, the detective never stopped to explain that he had no control over
what the prosecutor would choose to do with Appellant's statement.

Under the unique circumstances of this case, the trial court should have
excluded the interview from evidence, at least after the point when the
detective began to offer "help." Accordingly, we reverse and remand
for a new trial to be conducted without the benefit of the involuntary
interview statements." Click here for the
complete decision.

(Confession
found involuntary when interrogator misrepresented the charge)

In McGhee v. State (2008) the
Court of Appeals of Indiana held that the detective's erroneous statement
during an interview with defendant that it was not against the law for an uncle
to have consensual sex with a niece rendered involuntary defendant's subsequent
confession that he had sex with his adult niece.

The court stated that: "McGhee argues that his confession was involuntary
because Detective Cole obtained it by using "misrepresentations of fact
and promises of leniency." Specifically, he notes that, during the
videotaped interview, Detective Cole told McGhee that "it's embarrassing
sometimes for an uncle to have sex with his niece, but it's not against the law
if she wanted it." (State's Ex. 7). According to McGhee, his confession was
obtained as a result of Detective Cole telling him that his conduct was not
criminal, rendering the confession involuntary and inadmissible. We
agree."

The court went on to say, "At the very least, Detective Cole's comments
constituted an implied promise that McGhee would not be prosecuted if he
admitted to having sex with K.O. and it turned out that the sex was consensual.
Obviously, that was a promise that Detective Cole, like the officer in Ashby,
could not keep. McGhee's confession was brought about by Detective Cole's
misstatement of the law and was therefore involuntary and inadmissible." Click here for the
complete decision.

(Employer found guilty by jury of false
imprisonment)

In Robles, Plaintiff v. Autozone, Inc.,(2008) Robles obtained a
jury verdict in his favor for compensatory damages for false imprisonment. That
jury found AutoZone's employee, Octavio Jara (Jara), acting within the course
and scope of his employment, had falsely imprisoned Robles in the course of an
internal company loss prevention investigation, and it awarded Robles $73,150.
However, the trial court granted a nonsuit on the request for punitive damages,
and Robles appealed.

Here are the salient facts:

"On July 6, 2000, Robles arrived for work and was told by the store
manager ... that he should go to the back room because loss prevention officer
Jara and the district manager ... wanted to talk to him. Robles did so and Jara
told him there was an issue they needed to talk about, i.e., that the bank had
called stating that they received an empty bag with only a deposit slip, and
the slip had Robles's signature on it. Jara asked Robles several times if he
knew what had happened, and Robles said no. At some point, [the district
manager] left the room. Jara then told him, "we know who did it," and
accused Robles of stealing the money. Robles denied this for the remaining part
of the first portion of the loss prevention interview, which lasted two hours
and seven minutes. Jara told Robles they would need a statement, and Robles
filled out a form denying that he had taken the money."

After a 10-minute break in the interview, the following events occurred. Jara
asked Robles if he knew that Jara was a police officer (a reserve officer for
the City of Chula Vista) and Jara told him that he could get any information
about anybody. Jara told Robles he had had a former employee, Julio Martinez,
arrested by the police for theft. According to Robles's testimony at the first
trial, Jara then said, "All I have to do is give a phone call, and the
police will be at the front of the store to pick you up, and they'll take you
to jail because what you've done is a felony, and you will serve time."
Jara said that if Robles left, he would be arrested. Robles was afraid to
leave.

According to Robles, Jara then told him that they could keep the matter within
the company if Robles confessed and agreed to pay the money back in monthly
installments while keeping his job: "Robles then sat down and wrote what
Jara dictated to him in the next page of the statement, confessing to taking
the money and signing a promissory note to pay back the money." The
interview had lasted over three hours. "Robles was then suspended for a
few days, fired, and his last paycheck withheld. He was unable to obtain
unemployment insurance, due to being fired, but got a new and better job three
or four weeks later. His lost wages amounted to $2,000 or less."

It was soon discovered that the money in the deposit bag, approximately $800
AutoZone cash, (which was the focus of the interrogation) had been found at the
bank a few weeks later, without a deposit slip or account number, and the store
manager and Jara were told at that time about telephone calls from the bank stating
this, but no further action was taken by AutoZone about Robles with regard to
this money.

In 2001, Robles filed a complaint for damages for false imprisonment and other
theories against AutoZone and some of its employees. At the first jury trial,
extensive evidence was presented about the incident and about AutoZone's
procedures and policies for loss prevention, including training of loss
prevention managers, such as Jara, in the use of the company interviewing
manual, entitled "Investigative Interviewing, An Investigator's Guide To
Interviewing" (the manual). The manual sets forth methods and interview
techniques for loss prevention managers to use in interviewing employees
accused of theft. Click
here for the complete opinion.

In State v. Patton (2003) the court
very carefully examines the use of trickery and deceit in the interrogation of
suspects, and draws a very clear distinction between verbally misrepresenting
evidence and creating a fictitious piece of evidence. In their opinion the court
extensively reviews the history of the trickery and deceit issue and what
numerous courts have had to say on the issue. Click here for the complete case

(Confession was coerced when
investigators threatened to have Child Protective Services take defendant's
child away)

In U.S. v Guzman (June 2014) the US
District Court, W.D. Texas, ruled that "By implying that he and Hernandez had
the ability to determine whether Child Protective Services would take away the
custody of her child, Mora improperly coerced Defendant into confessing to
importing, knowingly, twenty packages of marijuana. Threatening the custody of
a defendant's child is coercive when used to illicit a confession of a
defendant. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963)
(holding that threatening to cut off state benefits and custody of her children
was coercive). In the instant case, Defendant was separated from her minor
child and, after being escorted into an interrogation room, was not informed of
what steps would be taken with her child. After denying Hernandez and Mora's
allegations throughout her interrogation, Defendant succumbed to their pressure
only after Mora made threatening statements about his power to have Child
Protective Services take custody of her child and Hernandez stated that he was
leaving the room to determine what steps to take with the minor child. The
statements made by Mora, together with Hernandez's actions and the separation
of Defendant from her child, constitute coercion and rendered Defendant's
confession thereafter involuntary. For these reasons, the Court finds that
Defendant's confession was involuntary and that Defendant's oral and written
statements, made after Mora and Hernandez's statements and actions concerning
the custody of Defendant's child, be suppressed."

In US v. Ortiz (2013) the US
District Court, S.D. New York, ruled that the defendant's incriminating
statements (while in his apartment where a gun was found) were coerced by
threats that the defendant's mother and aunt would be arrested unless he
acknowledged owning the gun. In their opinion the court stated that, "The
Second Circuit has never squarely addressed whether a threat to arrest a
suspect's family member renders that suspect's confession involuntary. Several
other circuits, as well as several district courts in this circuit, have
considered this question, however, and have all reached a similar conclusion:
such a threat does not render a confession involuntary if the police have
probable cause to arrest the family member and thus could lawfully carry out
the threat.

Here, as a result of Martinez's threat, Defendant's confession fell on the
wrong side of that line. Under the rule followed by courts in this circuit and
others, Martinez's threat to arrest Montanez [mother] and Defendant's elderly
aunt was improper unless the police had probable cause to arrest those
individuals and thus could lawfully act on the threat. The government has
already conceded that such probable cause was lacking as to Defendant's aunt,
so the threat to arrest her clearly was improper.... Click here for the
complete decision.

(Statement to suspect that he "should
explain his mistake so that his daughter did not have to grow up without her
dad" rendered the confession inadmissible)

In U.S. v. John (2012) the US
District Court, D. Arizona, found that any incriminating statements that the
defendant made after "the agent said Defendant should explain his mistake
so that his daughter did not have to grow up without her dad are suppressed as
involuntary." The court pointed out in their opinion similar statements
that can tender the confession inadmissible, stating the following:

Haynes and Lynumn demonstrate that threats and promises relating to one's
children carry special force. Interpreting these cases, the Ninth Circuit has
previously concluded that "[t]he relationship between parent and child
embodies a primordial and fundamental value of our society."..... When
interrogators "deliberately prey upon the maternal [or paternal] instinct
and inculcate fear in a [parent] that [he or] she will not see [his or] her
child in order to elicit 'cooperation,' they exert the 'improper
influence'...Click here for the
complete decision.

In State
v. Brown (2008) The Kansas Supreme Court upheld the Court of Appeals decision to suppress the defendant's
confession based on a violation of his constitutional privilege against
self-incrimination. The Court of Appeals had found that "in the
present case that "[w]hen a parent is essentially compelled to choose
between confessing guilt in abusing his or her own child or losing his or her
parental rights, the choice is between two fundamental rights under the
Constitution.".... In other words, Brown would suffer a substantial penalty,
the loss of the fundamental liberty interest in the care, custody, and control
of his children if he elected not to incriminate himself, thereby violating the
terms of the case plan." Click here for the complete opinion.

In People v. Ramadon (2013)
the Supreme Court of Colorado upheld the lower court's decision to suppress the
defendant's statements that were made after the investigator threatened to
deport him to Iraq if he did not tell the truth. In their opinion the Supreme
Court stated that, "After viewing the videotape of the interrogation, we
uphold the trial court's suppression order starting at minute fifty-four,
instead of minute forty-two, when the interrogating officer told Ramadon that,
if he did not tell the truth, he would likely be deported to Iraq. The record
supports the trial court's conclusion that coercive police conduct during the
custodial interrogation starting at the fifty-four minute mark played a
significant role in inducing Ramadon' s inculpatory statements. Click here for the
complete decision.

(The statement to the suspect that "It would be
worse for you" if you did not talk to law enforcement was coercive)

In US v. Ramirez (2014) the
US District Court, S.D. Florida found that the investigator's statement to the
defendant that "It would be worse" for him if he did not speak to law
enforcement was coercive.

"In the defendant's case, the court emphasized that the detective told the
defendant that a disadvantage of having a lawyer present was that the lawyer
would instruct the defendant not to answer questions, yet, the court explained,
"[t]he reason for requiring a lawyer during custodial interrogation is to
protect a suspect's privilege against self incrimination.".... . In
addition, the court exhibited particular concern that the detective's statement
that "honesty wouldn't hurt [the defendant]" "contradicted the Miranda
warning that 'anything he said could be used against him in court.' [ ] The
phrase 'honesty will not hurt you' is simply not compatible with the phrase
'anything you say can be used against you in court.' The former suggested to
[the defendant] that an incriminating statement would not have detrimental
consequences while the latter suggested (correctly) that an incriminating
statement would be presented at his trial as evidence of his guilt."Click here for the
complete decision.

(Telling a
suspect he could be charged with the more serious crime of lying to the police
can nullify the confession)

In State v. Valero(2012)
the Court of Appeals of Idaho confirmed the lower courts finding that the
defendant's confession should be suppressed because "the deceptive tactics
used by the detective, under the totality of the circumstances, rendered the
confession involuntary." From the Appeals Court decision:

"Deceptive police practices do not necessarily create coercion which would
render a suspect's subsequent confession involuntary and excludable.....
Confessions derived during the course of interrogations have been upheld as
voluntary, notwithstanding misrepresentations of facts by the police, such as
telling a defendant that his fingerprints were found on physical evidence or at
the scene.... Courts have uniformly accepted the police tactic of "telling
a suspect they have found some incriminating evidence to elicit statements from
a suspect on the view that an innocent person would not be induced to confess
by such police deception.".... However, that acceptance wanes when the
police misrepresent the law.

The detective misrepresented the law regarding the polygraph. Both before and
after the polygraph the detective told Valero that the polygraph results would
be admitted into court...

After stating that he could testify one hundred percent to Valero's guilt, the
detective returned to his themes. The detective again minimized the seriousness
of the accusations, stating that they were "not the end of the
world." Then, the detective stated: "What is getting you to the end
of the world and getting you in a bad spot now is the crime of lying to the
police." At that point, Valero was faced with the possibility of being
punished for two crimes: (1) one based on the girl's allegations; and (2) the
other purported crime of lying to the police and, according to the detective,
the more serious of the two crimes. Aside from the possibility of being
punished for two crimes, Valero was placed in the position of being able to get
out of the purportedly greater crime of lying by confessing to the purportedly
lesser crime of inappropriate touching. The district court properly found that
this false choice resulted in Valero's will being overborne.

While we do not hold that downplaying the seriousness of the accusations, by
itself, resulted in Valero's will being overborne, it is a factor in the
totality of the circumstances. Most importantly, in this case, the detective
utilized downplaying of the seriousness of the victim's accusations to juxtapose
that alleged crime against a threat of being charged with a more serious crime
of lying to the police, which the officer could prove "one hundred
percent" because the polygraph established that Valero was lying. Thus,
Valero was faced with a Hobson's choice.

.
... Most critically, the detective's representation that Valero could be
charged with a more serious crime of lying to police if he did not confess was
inherently coercive. It is precisely the type of coercive tactic that could
induce an innocent person to confess."Click here for the
complete decision.

(Court
finds that interrogator conduct "overbore" defendant's will and rules
that the confession is inadmissible)

In US v. Sanchez, (2009) the
United States District Court, D. Nebraska, ruled that "Because the
officers overbore Sanchez's will, Sanchez's confession should be found
involuntary, and therefore, inadmissible."

The court describes the interrogator's conduct as follows:

"In determining whether the officers' conduct overbore Sanchez's will, the
court will examine the officers' conduct and Ms. Huffman's conduct. As an
initial matter, the officers' interrogation of Sanchez could have taken place
at Sanchez's home, but the officers chose to conduct the interrogation at the
police station. The facts of this case indicate the officers were angry and
intimidating, they got close to Sanchez's face, and they were yelling at and
badgering Sanchez. Officers told Sanchez he was "going to jail," and
threatened him with charges of attempted murder and assault with a deadly
weapon. Additionally, the officers' suggestion of possible retaliation by the
victim's brother, who was known to be dangerous, may reasonably be considered a
threat to a person in Sanchez's position. Such a threat of possible violent
retaliation may be considered particularly coercive in light of the fact
Officer Rave knew Sanchez had younger sisters. Finally, allowing Sanchez to see
a photograph of the victim's injuries may have been a significant factor in
overbearing the will of Sanchez, given his level of immaturity, low tolerance
for resisting others' influence, and seeing his mother emotionally upset after
viewing the graphic photograph of Rodriguez' injuries." Click here for the
complete decision.

(Confession found inadmissible due to threats
and promises from the investigators)
In State v. Pies, (2009) the
Iowa Court of Appeals reversed the trial court finding that the defendant's
confession was admissible and ruled that the confession was actually the result
of the "not-so-subtle threat of a long burglary sentence and by the
promise of a potential lesser penalty upon confession." In reviewing the
matter the Court of Appeals stated the following:

"During questioning, an "officer can tell a suspect that it is better
to tell the truth without crossing the line between admissible and inadmissible
statements from the defendant.".... However, the line between admissibility
and exclusion is crossed "if the officer also tells the suspect what
advantage is to be gained or is likely from making a confession. Ordinarily the
officer's statements then become promises or assurances, rendering the
suspect's statements involuntary."

With these principles in mind, we detail portions of the interrogation:

Officer R: OK. Now, now we are going to shift gears. And I am going to tell you
right now I have got enough right now to arrest you and take you to jail for
burglary of that hardware store. I am offering you an option here to come clean
and lessen the charge and work with us on this thing.... At this point, if you
choose not to cooperate, we will take you, I will charge with the full boat of the
crime and you will suffer the consequences.

Officer R: We are offering you a break here. To come clean.

Officer S: Let's take care of this problem and lessen the charge or take the
full boat of this.

Officer R: Matt, you work with us-the county attorney-we will indicate ... in
our report to him, that you ... were very cooperative. Do you want to fight
this thing and work against us, then you are going to get charged and it is
going to be very serious. Do you want me to read you what the penalty is on
that?

Pies: Burglary?

Officer R: Long time jail. Probably up to ten years....

Pies: Oh jees....

Officer R: ... Why are you shaking your head?

Pies: I just feel like I am being backed against the wall here I, mean. Whether
I did or didn't do it. You are telling me that you got my garbage.

Officer R: You know you did it. You are the only one that is going to try to
help yourself. If you don't want to help yourself ... that's fine. You say the
word, we will cease the conversation. I'll cuff you and take you over and book
you in. If you want to help yourself you are going to talk to ... try to lower
this penalty down a little bit. ...

Officer R: ... The thing is now we know you did it, you know you did it, help
yourself on this thing without burying yourself. Because believe you me, a
theft charge versus a burglary charge maybe, maybe looks just a little bit
better than burglary.

Officer S: Do you have any of the cash left?

Pies: Are you going to put this deal in writing?

Officer R: What deal?

Pies: Understand that you are going to drop the charge.

Officer R: Matt.

Pies: If I pled guilty.

Officer R: Matt. I can not put anything in writing. It is up to the county
attorney. But what I can do is indicate in the report that you ... helped with
this thing. And that you were honest. If you don't want to be honest, then that
is when it is going to get serious. Mike and I will do everything we can to put
in a good word for you to lessen your penalty on this thing, but you got to
help us out.

Officer S: We can make a recommendation that the charges be lessened. We told
you already that we have enough to charge with your burglary. We are giving you
the opportunity to help yourself.

Under the evidentiary test articulated in Mullin, utilized in Quintero, and
reaffirmed in McCoy, we conclude the trial court erred in ruling the officers
did not make improper promises. Pies's inculpatory statements were improperly
induced by the not-so-subtle threat of a long burglary sentence and by the
promise of a potential lesser penalty upon confession. Thus, the inculpatory
statements were not voluntarily given and "should not have been admitted
in evidence because of [the statements'] lack of reliability." Click here for the complete
decision.

(Confession
inadmissible due to promises and threats)

In People v. Fuentes (2006) the Court
of Appeal, Second District, California found the defendant's confession to be
inadmissible because improper promises and threats were made during the
interview, both express and implied, which rendered the confession involuntary
as the product of coercive police activity. From the Appeal Court's decision:

"In making this argument, defendant focuses on
exhortations that even good people can do bad things while intoxicated and that
defendant's not being in his "right state of mind" when the incident happened
would "help" him. In addition, defendant was told that not confronting the
situation would be "worse" for him, if defendant lied the case would go "very,
very bad" for him, and if defendant kept quiet he could be charged "for
something more serious, very ugly." Conversely, if a person tells the truth "it
goes much better for them" and "the charges are lowered - a little." Finally,
at least one and one-half hours after the interview started, defendant was
given the alternative of spending either "the rest of [his] life" or "five or
six years" in jail. He then confessed. In addressing the issue of
voluntariness, the trial court concluded that under the totality of the
circumstances the "latitude" taken by the police in questioning defendant was
permissible. Based on our independent review of this legal issue, we reach the
opposite conclusion (and therefore do not need to analyze the separate issue of
defendant's Miranda waiver)."Click here for the complete decision

(The importance of accurate translations by the
interpreter - erroneously suggesting a lesser punishment if defendant
confessed)

In State v. Fernandez-Torres
(October 2014) the Court of Appeals of Kansas upheld the lower court's decision
to suppress the incriminating statements made by the defendant. From the Court
of Appeals' opinion:

"In September 2010, the Douglas County District Attorney charged Fernandez
with aggravated indecent liberties with a child for the lewd touching of
A.L.G., who was 7 years old at the time.

During the investigation of the offense, Fernandez accompanied Lawrence police
officer Anthony Brixius to the law enforcement center to be questioned about
his interaction with A.L.G.

At the suppression hearing, Brixius testified that he and Fernandez talked in
English on the ride to the law enforcement center. Brixius speaks very little
Spanish. Another police officer accompanied them. No one spoke in Spanish
during the brief trip. Once at the law enforcement center, Fernandez was placed
in an interrogation room. Brixius testified that he had concerns about
Fernandez' fluency in English and sought out a Spanish-speaking translator to
participate in the interrogation. Brixius pressed Oscar Marino, a bilingual
probation officer, into service. Marino was born in Venezuela and grew up
speaking Spanish; he came to the United States in his teens about 30 years ago
and has become fluent in English. Marino has no training in real-time
translation and has never been certified as a Spanish-English translator. At
the suppression hearing, Marino testified that he has translated for police officers
conducting interviews or interrogations "[a] handful" of times. The
interrogation was videotaped.

"In weighing Fernandez' age, intellect, and background, the district court
relied, in part, on the clinical assessment of Dr. Barnett. Dr. Barnett's
expert opinion that Fernandez functioned intellectually in the "low
average" range and likely had some form of learning disability was
unrebutted. Dr. Barnett also testified Fernandez had difficulty readily
understanding and responding to questions posed to him. Again, that clinical
observation went unchallenged in the sense the State offered no countering
expert. The intellectual limitations Dr. Barnett suggested at least square with
Fernandez' abbreviated education and his partial literacy, especially in
English. The district court found Fernandez' intellect played a part in
rendering his statements involuntary.

The district court was particularly troubled by the last two enumerated
factors: the fairness of the interrogation and Fernandez' fluency in English.
We share that concern. In this case, the two factors are closely related, so we
discuss them together.

Fluency in English typically comes into play when a suspect is literate in some
other language but is interrogated in English... Illustrating the seamlessness
of the generically labeled factors, fluency would also be implicated if a
suspect knew only English but his or her mental incapacity substantially
impaired his or her ability to communicate. That situation might also bear on
mental condition and, possibly, intellect. This case presents a variant because
Brixius sought out a translator, so the interrogation could be conducted in
Spanish--Fernandez' primary language, although Fernandez understands some
spoken English.

To be plain about it, Marino lacked the bilingual capacity and the training to
function effectively as a translator in an extended interrogation about a sex
crime against a child. The two experts agreed that Marino mistranslated both
questions and answers and sometimes substantially paraphrased what was being
said. The district court's expressed concern about whether Brixius and
Fernandez were fully communicating in an effective way finds sufficient support
in the record evidence.

The district court was particularly troubled by Marino's use of
"negociar" in conveying Brixius' assertion that "we can deal
with" the situation if Fernandez had touched A.L.G. inappropriately for
just a second. Both experts considered the translation to be misleading and
suggestive of an accommodation in which Brixius could handle or negotiate any
offense if Fernandez admitted to briefly touching A.L.G.'s pubic area or
vagina. As translated for Fernandez, the statement might be construed as a
promise of lenient treatment or an outright deal, thereby affecting the
truthfulness of any inculpatory admissions on the theory a suspect might
falsely confess if he or she understood no charges or only minor charges would
result.

The emphasis Marino imparted with his use of "negociar" may not have
been what Brixius specifically wanted or intended. But the deviation was one of
degree given Brixius' interrogation technique that combined false
representations about supposedly incriminating evidence with suggestions that
inaccurately tended to minimize the legal consequences of some unlawful
behavior. The result of those techniques over the course of the interrogation
combined with communications issues resulting from subpar translation and
Fernandez' limited intellectual capacity caused the district court to find the
resulting statements to be involuntary and, thus, constitutionally suspect.
Fernandez' limited fluency in English ties into the fairness of the
interrogation. So we turn to that factor.

In the face of Fernandez' denials that he inappropriately touched A.L.G. and
his limited admission that he might have accidently brushed her pubic area in
trying to get her back into bed, Brixius falsely stated skin cell evidence
conclusively proved otherwise. There was no such evidence. Brixius, however,
insisted the phantom scientific evidence meant Fernandez intentionally touched
A.L.G.'s vagina. Brixius then repeatedly challenged Fernandez to offer some
explanation for that conduct. Brixius suggested Fernandez wasn't a bad person
and merely had a momentary lapse in judgment, perhaps because he was upset or
had drunk too much or for some other reason, in contrast to being a degenerate
regularly preying on children for sexual gratification. Brixius then told
Fernandez if he had touched A.L.G. for a second, they could "deal with
that"--the representation that Marino translated to "negociar."
Later in the interrogation, Brixius again told Fernandez that it was
"okay" because he didn't keep on touching A.L.G. Those
representations falsely minimized the legal consequences of the action--brief,
intentional physical contact with A.L.G.'s genitals actually would legally
support a charge of aggravated indecent liberties with a child and a life
sentence upon conviction.

Brixius' interrogation approach effectively informed Fernandez both that the
police had irrefutable scientific evidence that he had touched A.L.G.'s vagina
and that if he had done so only for a second his actions were "okay"
and could be dealt with. The underlying message to Fernandez was this: We have
overwhelming evidence against you, but if you tell us you did it just briefly,
nothing much will happen to you. Brixius maneuvered Fernandez into a situation
in which yielding to the suggestion would seem to carry a material benefit,
though quite the reverse was true. An unwary or pliable subject--Fernandez,
based on the district court's findings, fit that bill--could be induced to
accede to the suggested version of events because it looked to be convenient,
compliant, and advantageous. In that situation, a suspect may no longer be
especially concerned about falsity of the statement. The interrogation strategy
lures the subject in, snares him or her with representations about the strength
of the evidence (that may or may not have any basis in fact), and then offers what
appears to be a way out through admissions deliberately and incorrectly cast as
significantly less legally and morally blameworthy than alternative
explanations of the evidence.

In this case, looking at the whole of the circumstances, we conclude, as did
the district court, that the inculpatory statements Fernandez made to Brixius
were sufficiently tainted by the interrogation process and Fernandez'
vulnerability to be something less than freely given."

In State v. Talayumptewa
(October 2014) the Court of Appeals of New Mexico upheld the lower court's
decision to suppress the defendant's incriminating statements "on the
basis that they were the product of coercive police conduct in the form or
promises of leniency." From the Appeals court decision:

"Defendant responded to the officers' questions by saying that he could
not remember what happened because he was intoxicated when the alleged
incidents occurred. In response, the officers repeatedly told Defendant they
would be meeting with the district attorney, that his claims not to remember
were legally invalid, and that they had the ability to influence the district
attorney with respect to the level of charges Defendant faced. Among other
similar statements, Officer Pena told Defendant:

You're giving us nothing and that's what we're gonna [sic] go to the D.A.s with
... is that he gave us nothing ... he tried to use the old ... I don't remember
because I was intoxicated defense.... And that's what we're gonna tell the D.A
He came in and he gave us a convenient excuse.... Oh I was drunk.... Oh I don't
remember.... It coulda [sic] happened, but I don't know if it did ... or
anything like that.... So if you do remember what happened, just come clean
with us.... We're trying to help you here.... Okay, but we can only help you so
much.... Okay, I can't go to the D.A.s and be like hey let's ... you know let's
cut this guy a break or ... or let's ... you know let's do this or ... let's uh
... you know let's think about it second [sic] if you won't tell us what
happened cuz [sic] I can't go to the D.A. with that.... Okay, I can't.... The
D.A. ain't gonna [sic] buy that either.

The officers also began to inform Defendant that he was facing multiple felony
charges and that they could help him, but only if he remembered. Officer Pena
told Defendant:

Okay.... I tried to help you here, I tried to give you a life line, I tried to
help, I tried to give you that life preserver for you to help yourself, you
don't wanna [sic] take it that's fine.... I'll ... we ... Investigator Ashley
will go forward to the ... to the D.A.s with what we have based off what her
... what she's saying 'cuz [sic] you don't want to recant anything she's saying
by just saying I was intoxicated, I don't remember ... that's fine, if that's
... that's the road you wanna [sic] go down ... that's fine, okay ... when the
warrant comes and when we're putting you in jail ... for multiple felonies okay
... don't say oh wait a minute, I wanna [sic] talk now, because that's gonna
[sic] be gone, once you get cuffed and put in jail.

In the specific exchange cited by the district court, the officers also
discussed the range of prison terms for different degrees of felonies in
response to Defendant's question about how much jail time he was facing. The
following discussion then occurred:
Defendant: Is there a way I can like.... The only way I can help myself is to
remember, right?

Officer Pena: That would be a big help.

Defendant: And then if I remember and that is what happened I'm still looking
at those right?

Officer Pena: No[t] necessarily, uh ... it's still ... we still have to ...
it's not like we sit here and we're like okay, we're gonna [sic] charge him for
this okay ... we need to get everything done ... we still got some interviews
to do and stuff like that, we're gonna [sic] do ... we're gonna [sic] interview
everybody then we take our whole case and we give it to the D.A.s and the D.A.s
is the one who say ... this and that ... okay?

Officer Ashley: [S]eriousness of the crime is way up here, we can help
eventually bring it back down to maybe almost down to nothing ...

Officer Pena: That also depends on ... us being able to go to the D.A.s ...
being able to say to the judge you know, he was very ... sorry it was an
accident, it was [a] stupid mistake that he did while he was intoxicated ... he
came in he was honest about it, he was up front about it ... he did remember
finally, he came back in and said hey this is what I remembered.

These statements and the others like them constitute implied promises of
leniency because their import was that Defendant would be arrested on serious
felony charges if he continued to claim a lack of memory, but that if he made
certain admissions, officers would intercede with the district attorney on his
behalf, and that they had the ability to have charges reduced or not brought at
all.

... The transcript contains numerous statements by the officers throughout the
interview, the effect of which was to say that if Defendant gave a statement
they would act on his behalf and had the ability to get the charges reduced.
This was more than a mere offer to bring Defendant's cooperation to the
attention of the district attorney, which courts have found acceptable.

We next turn to the overall question of voluntariness.....

Again, our review of the transcript of the interview supports the district
court's ruling. As the district court found, there were a multitude of implied
promises of leniency that started at the outset of the interview and continued
throughout, constituting coercive police overreaching. We also find it
significant that prior to making both the oral and written statements at issue,
Defendant indicated that he was acting in an effort to avoid prison... Before
writing the apology letter at the request of the officers, Defendant said:
"I'll do anything to avoid jail cuz [sic] I don't wanna [sic] to miss out
on my daughter[']s life." Also, while making statements purporting to
remember the events of the evening, Defendant repeatedly said that his
motivation was to avoid jail: "I'm trying to remember because I really
don't want to go to jail or anything else.... I'm trying to remember because I
wanna [sic] be able to just put this behind me and just move on."
"I'm trying to remember but it's ... like I will do anything it takes to
avoid jail time." "I'm just trying to remember so I don't ... I just
... you know, I don't wanna [sic] to go to jail."

The State points to the fact that Defendant came voluntarily to the police
station, was informed that he was free to leave, and did not appear sleepy,
nervous, or intoxicated to the officers. The State also notes that the officers
reminded Defendant that they personally would not be making the charging
decision. However, while these factors may weigh in favor of voluntariness to
some extent, based on the totality of the circumstances, we agree with the
district court that they are insufficient to outweigh the coercive effect of
the numerous implied promises of leniency made to Defendant by the officers
throughout the interview.

In US v. Sharp (2013) the US
District Court, W.D. Kentucky, ruled that the defendant's confession should be
suppressed because it was the result of a promise that all sentences would run
concurrently, and the statement if she did not confess the sentences would run
consecutively.

Specifically the court stated, "Defendant contends that the police
promised in both the interrogation concerning the Hayes Oil robbery and the
Kangaroo Express robbery that she would be sentenced concurrently with the
robbery of Fifth Third Bank. Based on the transcript of the interrogation on
June 29, 2012, the Court finds substantial corroboration in the record that the
police promised just prior to Ms. Sharp's confession in each instance that she
would be sentenced concurrently with the Fifth Third robbery. As to the
interrogation concerning Hayes Oil, Detective Book informed Defendant that it
did not matter how many crimes that she confessed to at that point because the
Government was "not going to run sentences after sentences after sentences"
on her.... Detective Book reiterated this point before informing her that the
police had a video of her committing the Hayes Oil robbery. The interrogation
concerning Kangaroo Express followed almost the exact same pattern. In fact,
Detective Herndon not only explained the difference between consecutive and
concurrent sentencing but also specifically stated, "As a general rule, it
doesn't matter how many crimes you've committed, they run the sentences
concurrently." Id. at 34. Detective Herndon then continued to explain that
if she did not confess at that time and the police found more evidence to
charge her with the robbery of Kangaroo Express, then "by the time that
catches up you may have to run your case consecutively as opposed to
concurrently." Id. at 35. Again, the conversation turned to a brief
discussion about the existence of a video, and then Ms. Sharp confessed to
robbing the Kangaroo Express.Click
here for the complete decision.

(Statement's
such as "people who were honest with the police would be helped differently
than those who lied about their guilt" led to an inadmissible confession)

In Kohland
v. State (2013) the Court of Appeals of Iowa ruled in favor of the
defendant's claim that his counsel was ineffective because he failed to move to
suppress his confession. In their analysis the court considered the
statements that the investigator made to the defendant during the
interrogation, and in their discussion of the issue of an admissible
confession, stated the following:

"In the present matter, Cpl. Reid offered
help and indicated people who confessed were helped differently than those who
withheld the truth. Cpl. Reid repeatedly instructed Kohland he would be free to
leave at the end of the interview regardless of what he said and truthfulness
would allow Kohland to fix any mistake. More disturbing, however, was when Cpl.
Reid stated a confession would mean the case would proceed differently than if
it continued as a criminal investigation. The obvious implication from this
statement is Kohland's cooperation would prevent the case from being
investigated as a criminal matter.

"...... We find these statements are the
equivalent of a promise for better treatment, as found in Hodges. The
same can be said of Cpl. Reid's assurance that Kohland would be set free
following the interview.... Cpl. Reid's statement that the case would be treated
differently than a criminal investigation is impermissible and amounts to an
assurance that no criminal charges would follow... These statements go far beyond
simply informing the prosecuting authorities of the defendant's cooperation and
amount to an identifiable benefit being promised."Click here for the complete decision.

(Improper interrogator behavior –
promise not to charge with murder)

In State
v. Garcia (2013) the Supreme Court of Kansas reversed the defendant's
conviction, finding that the interrogator's behavior led to a coerced
confession. The Supreme Court stated that, "Garcia contends that the
district court erred in finding that the totality of the circumstances
established that his confession to participating in the robbery was freely and
voluntarily given. He emphasizes two circumstances that gainsay voluntariness:
(1) The interrogating officers withheld requested medical treatment and pain
medication for Garcia's gunshot wound until the interrogation was completed;
and (2) the State used promises of leniency to induce the confession. We agree
with Garcia; the manner in which his ultimate confession to robbery was
obtained was unconstitutionally infirm.

"We turn now to Garcia's specific
complaint that the officers denied him medical treatment for the purpose of
inducing a confession. The district court considered Garcia's gunshot wound and
accompanying pain only as it related to his ability to lucidly communicate with
the law enforcement officers. In that regard, the district court was willing to
accept the fact that Garcia was in pain, so long as the pain was not so acute
as to affect his ability to know what he was doing or saying. But a knowing
confession is not a voluntary confession if it is coerced, i.e.,
if it is not the product of free will. The inquiry, then, is whether the
officers' withholding of medical treatment influenced Garcia's decision to
confess to the robbery. If law enforcement officers make an accused endure
pain, even less than debilitating pain, until the accused gives a statement that
the officers will accept, the voluntariness of that confession is, at best,
suspect. The record indicates that was the circumstance here.

"We discern that certain things are
patently obvious from the words and actions of the law enforcement officers conducting
Garcia's interrogation. First, the officers knew that Garcia had been shot in
the foot with a firearm; that he probably still had the bullet inside his body;
that he had not received professional medical treatment for the wound; and that
he was experiencing pain from the injury at the time of the interrogation.
Next, Garcia was not going to be provided any medical attention or pain
relieving medication until the officers had completed their questioning and
took him to the hospital to retrieve the bullet for evidence. Further, the
officers appeared unlikely to complete their questioning until Garcia gave them
the statement that they believed to be true, which was that Garcia participated
in the robbery.

"The foregoing exchange did not stop
short of promising a benefit to Garcia in return for his confession to robbery.
The promised benefit was clearly stated: "They're not going to book you for
murder." That was the same carrot that the officers had been unsuccessfully
dangling in front of Garcia for hours.

"The law enforcement officers' coercive
tactics and promises of leniency, in the context of the circumstances of the
entire interrogation, convince us that the confession here was not a product of
the accused's free will, i.e., was not voluntary. Accordingly, we find
that the district court erred in refusing to suppress the defendant's
confession."Click here for the complete decision.

(Improper offer of leniency nullifies a
confession)

In State
v. Wiley (2013) the Supreme Court of Maine found that the detective
made an improper offer of leniency to the defendant and that his improper offer
of a short jail sentence and some probation, as an alternative to lengthy
prison sentence, was the primary motivating cause of the defendant's
confession, thus rendering the confession involuntary.

In describing the detective's behavior, the court stated the
following: "Detective Bosco's representation as to how certain it was that Wiley's
cooperation would secure him a short jail sentence and probation was equivocal
at times, with Detective Bosco stating at one point, "I can't promise you anything," but then, moments
later stating that he could "guarantee" that the judge would be more lenient.
Nonetheless, it is inescapable that the overall effect of Detective Bosco's
representations—which he alternately described as an "offer," "option,"
"opportunity," and chance to "write[ ] your own punishment"—was to
establish that if Wiley confessed to the crimes he would get a short county
jail sentence with probation, and thereby avoid state prison. Wiley was told,
"[t]he only reason you're getting this opportunity is because people spoke very
highly of you," and that "[t]his offer's going to expire if ... you're not
going to do the right thing." The conclusion that this concrete representation
was, in effect, an improper offer of leniency is inescapable."Click
here for the complete decision.

(Improper
promise of leniency- treatment in lieu of jail)

In State v. Howard(2012)
the Iowa Supreme Court found that "the detective's questioning crossed the
line into an improper promise of leniency under our long-standing precedents,
rendering Howard's subsequent confession inadmissible."

In
their opinion the Iowa Supreme Court stated that, "It is true, as the
court of appeals' majority noted, Detective Hull never overtly told Howard he
would receive a lighter sentence if he confessed. He never said an inpatient
treatment program would be the only consequence. He stated no quid pro quo out
loud. But, his line of questioning was misleading by omission. As the court of
appeals' well-reasoned dissent aptly observed, "Officer Hull's statements
strategically planted in Howard's mind the idea that he would receive
treatment, and nothing more, if he confessed."... Detective Hull's
repeated references to getting help combined with his overt suggestions that
after such treatment Howard could rejoin Jessica and A.E. conveyed the false
impression that if Howard admitted to sexually abusing A.E. he merely would be
sent to a treatment facility similar to that used to treat drug and alcohol addiction
in lieu of further punishment. Significantly, Detective Hull did not counter
this false impression with any disclaimer that he could make no promises or
that charges would be up to the county attorney. We hold his interrogation
crossed the line into an impermissible promise of leniency, rendering the
confession that followed inadmissible."Click here for the
complete decision.

(Impermissible promise of leniency)

In State v. Polk (2012) the
Supreme Court of Iowa concluded that "the district court erred in denying
Polk's motion to suppress his confession..... Polk's confession followed an
impermissible promise of leniency..." From the Supreme Court's opinion:

"After three minutes of questioning, Polk said, "I ain't got nothing
to say. Can I go back to my pod?" Monroe immediately baited Polk by saying
he could go back if Polk "didn't want to know what happens from here on
out." Polk took the bait, asking, "What happens?" and remained
in the interview room. Monroe then began to insinuate that cooperation could
affect punishment. Monroe told Polk that "what happens from here can be
influenced by what we talk about." Monroe elaborated, "Let me just
lay it out for you like this okay, it has been my experience working cases like
this, that if somebody cooperates with us, on down the road the county attorney
is more likely to work with them." For the next several minutes, Monroe
reinforced the message that Polk would benefit by cooperating. For example,
Monroe stated county attorneys "are much more likely to work with an
individual that is cooperating with police than somebody who sits here and says
I didn't do it."

.....
After Monroe and Polk agreed to resume the interview, Monroe played on the fact
Polk had children:

I'm telling you, you need to start thinking about what you are going to do for
yourself because I know you got a couple of kids out there and I'd hate to see
the kids miss their daddy for a long time because you didn't want to talk about
what's going on.

Monroe continued: "Man if you don't want to do this for you, do this for
your kids. They need their dad around. [35-second pause] Just don't forget you
got kids that are depending on you. They need their pops around." The court
of appeals observed, "It is clear from this statement that the officer
meant to communicate that if Polk confessed, he would spend less time away from
his children." We agree. The strategy worked--Polk promptly confessed to
taking a firearm to the scene with the intent to shoot Henley and firing shots
at Henley there.

Monroe's
interrogation strategy goes beyond the permissible tactics approved in Whitsel.
Monroe did not simply offer to inform the county attorney of Polk's
cooperation. Instead, he suggested the county attorney is more likely to work
with him if he cooperates and implicitly threatened Polk that silence will keep
him from his children for "a long time." Monroe's statements are
similar to the officer's statement in Hodges that "there was a much better
chance of ... receiving a lesser offense" if the defendant confessed.... In
each case, the officer suggested the defendant's confessions would likely
reduce the punishment.

We conclude Monroe crossed the line by combining statements that county attorneys
"are much more likely to work with an individual that is cooperating"
with suggestions Polk would not see his kids "for a long time" unless
he confessed. Other courts have cried foul when interrogators imply a
confession will reduce the suspect's time away from his or her children.Click here for the
complete opinion

(Improper interrogator statements - promises and threats)

In Commonwealth v. Baye (2012)
the Supreme Court of Massachusetts found that the defendant's incriminating
statements should have been suppressed as a result of the statements made to
him by the investigators. From their opinion:
"Here, before making any inculpatory statements, the defendant
unambiguously expressed his desire to speak to a lawyer.... Understanding that
the defendant would consult an attorney if he thought that the troopers would
"accuse or charge [him]," the troopers told him that they would not
do so. Knowing also that they had warned the defendant at the outset,
consistent with Miranda, that anything he said to them could be used against
him, the troopers undermined their prior admonition by agreeing that his
statements would not be used as the basis of an accusation or a charge.

...... For this reason, assurances that a suspect's statements will not be used
to prosecute him will often be "sufficiently coercive to render the
suspect's subsequent admissions involuntary" even when the suspect shows
no outward signs of fear, distress or mental incapacity.....

The troopers' reaction to the defendant's invocation of his Fifth Amendment
rights is of particular concern here because the defendant's request occurred
after he had been read his Miranda rights. We have "encouraged police to
give Miranda warnings prior to the point at which an encounter becomes
custodial," ...... and we do not decide in this case whether the provision
of such warnings binds interrogators to honor scrupulously a suspect's
invocation of his or her Miranda rights outside the context of a custodial
interrogation. However, where the police provide precustodial warnings but then
ignore the defendant's attempts to avail himself of those rights, the
"coercive effect of continued interrogation [is] greatly increased because
the suspect [could] believe that the police 'promises' to provide the suspect's
constitutional rights were untrustworthy, and that the police would continue
to" ignore subsequent invocations, rendering such invocations
futile."Click here for the
complete opinion

(The difference between "limited assurances" and
promises of leniency)

In US v. Pacheco (2011) the US
District Court, D. Utah, drew a distinction between "limited assurances" and
promises of leniency. In their opinion they stated that "Under Supreme
Court and Tenth Circuit precedent, a promise of leniency is relevant to
determining whether a confession was involuntary...." The Supreme Court has
recognized that when individuals are "in custody, alone and unrepresented by
counsel," they are "sensitive to inducement" by promises of leniency.Not all promises,
however, are coercive. Courts have held that an officer may make a promise to
talk with a prosecutor and recommend leniency.An officer may even
speculate that such "cooperation will have a positive effect." Because such
statements are mere "limited assurances," they are permissible. Statements,
however, that go beyond limited assurances can "critically impair a defendant's
capacity for self-determination."

In
this case, the investigator "made repeated improper use of the word "I" during
the interrogation. He said I can charge you with one count or I can charge you
with ten; I am the first point in judging in the federal system; I am going to
indict you; I already have a U.S. attorney on board; and I can charge the
January 17th robbery under the Hobbs Act. Besides these statements, Detective
Wendelboth conveyed to Pacheco that he was leaving it up to him to decide
whether to confess so he could avoid a life sentence and get out to see his
children grow up. The import of these statements is that Pacheco would have
reasonably understood that Detective Wendelboth had the authority to make a
deal, that he would decide what counts to charge based on the level of
Pacheco's cooperation, and that if Pacheco confessed he would not receive a
life sentence.

Although
Detective Wendelboth did briefly mention that he would go to the AUSA, his
comment was insufficient to clarify that he had no authority to make a deal
with Pacheco and that he only would be making a recommendation to the AUSA. The
court therefore concludes Detective Wendelboth's statements were not mere
"limited assurances," but promises of leniency that could result in a coerced
confession."Click here for the complete decision.

(Confession made to company investigators ruled inadmissible
because it was the result of a promise not to prosecute)

In State v. Powell, (2011) the Court of Appeals of Oregon
upheld a lower court's decision the suppress a confession from an employee
because the "express and implied promises of immunity from criminal prosecution
given to the defendant by the Fed Ex investigators render[ ] his statements to
them involuntar[y]." In this case the employee was told the following by
the company investigators:

"It's
apparent that you took this stuff, so now we're at a crossroads, okay? * * * We're at a point where either we handle it in-house here, in FedEx, or
we can turn everything we have over to the [police department], and then they
handle it from there. Now if you choose that route, there's nothing
you can do. They'll be going to get search warrants for your house, for your
mother's house. They'll go through all of your stuff. It's just gonna be a big
mess, okay? * * *

"At
this point, our base concern here at FedEx is we want to know, we need to make
a customer happy. And if we can make the customer happy, then they don't come
back on [defendant], okay? And I don't think you're a bad guy, okay? If I had thought you were a bad guy I would've taken all this stuff
and we would've given it to the [police department] and said, 'You gotta jack
him up, we're done with him,' okay? I don't feel that way. You've
got a lot of stuff going on in your life right now, and I know it. People do
boneheaded things, okay? But where we go now is what's going to
decide your future. * * * Nobody but who's in this
room needs to know."Click here for the complete decision.

(Police cannot promise drug treatment in lieu of
incarceration)

In
State
v. Jenkins (2011) the Court of Appeals of Ohio, Second District, upheld
the trial court's decision to suppress the defendant's incriminating statements
because they were the result of a promise of treatment in lieu of prison.
"Jenkins described his initial interview with Yount as follows: "He told me
that he had the authority to get me treatment as long as I helped him. He was a
man of his word. He said if I was a man of my word, he would be a man of his
word. He would get me treatment as long as I was truthful and honest with him.
That was the only way it was going to happen." Jenkins stated that Yount told
him that he had the authority, independent of the prosecutor, to arrange
treatment in lieu of conviction.

"
'The line to be drawn between permissible police conduct and conduct deemed to
induce or tend to induce an involuntary statement does not depend upon the bare
language of inducement but rather upon the nature of the benefit to be derived
by a defendant if he speaks the truth, as represented by the police. * * *

"
'When the benefit pointed out by the police to a suspect is merely that which
flows naturally from a truthful and honest course of conduct, we can perceive
nothing improper in such police activity. On the other hand, if in addition to
the foregoing benefit, or in the place thereof, the defendant is given to
understand that he night reasonably expect benefits in the nature of more
lenient treatment at the hands of the police, prosecution or in court in
consideration of making a statement, even a truthful one, such motivation is
deemed to render the statement involuntary and inadmissible. The offer or
promise of such benefit need not be expressed, but may be implied from
equivocal language nor otherwise made clear.' "

On
February 10th, Jenkins made Yount aware of his drug addiction, and Yount
discussed intervention in lieu of conviction with Jenkins, and he further
indicated that the police department has "influence on things that happen
throughout the trial." On February 11th, Yount testified that he recommended
treatment for Jenkins to the judge. Jenkins was fearful about going into
withdrawal. While Yount did not guarantee treatment in exchange for Jenkins'
confession, he implied by his conduct and words that such a benefit was a
possibility. In considering the nature of the benefit to be derived from
Jenkins' confession, namely treatment for a severe drug addiction, we conclude,
as did the trial court, that the benefit did not naturally flow from a truthful
course of conduct on the part of Yount. Intervention in lieu of conviction was
not available as a matter of law, and Yount's false representations undermined
Jenkins' capacity for self-determination and impaired his decision to provide
incriminating statements. Having considered the totality of the circumstances,
the State's sole assignment of error is overruled." Click here for the
complete decision.

(Court finds confession inadmissible due to
interrogator threats and promises)

In
U.S.
v. Ellington (2011) the U.S. District Court, S.D. Texas, Houston
Division, stating that "In this case, the coercive conduct of the law
enforcement officials that participated in planning and executing Ellington's
interrogation is the critical factor that leads the Court to conclude that
Ellington's statement was involuntary. Indeed, the Court is deeply troubled by
the course of official conduct that ultimately caused Ellington to waive his
rights and make an incriminating statement. The agents employed threats of significantly
greater punishment for Ellington and his wife and made illusory promises of
leniency if Ellington "cooperated." They then made Ellington's sole opportunity
to cooperate contingent upon his willingness to waive his right to counsel and
incriminate himself. When considered together, as they were intended to be,
these pressures were plainly coercive and, ultimately, caused Ellington to make
a statement that was not the product of his free and rational choice.

In
sum, both the agents and AUSA Rodriguez told Ellington that he was being
presented with his sole opportunity to cooperate. If he chose not to give a
statement during the interrogation, the charges against him and his wife would
be "stacked." Indeed, the agents and AUSA Rodriguez threatened Ellington with
the prospect of extreme consequences if he refused to provide an incriminating
statement, while at the same time made an illusory promise that, if he gave an
incriminating statement and was able to provide substantial assistance, he
could avoid the maximum consequences, avoid going to jail that day, continue
receiving a pay check for some period of time, and keep his wife out of prison.
"In many ways, both types of statements are simply different sides of the same
coin: 'waive your rights and receive more favorable treatment' versus 'exercise
your rights and receive less favorable treatment.' " ..... Viewed either way, the
agents formulated an extraordinarily frightening threat coupled with an
attractive inducement, making it "apparent that the prosecutor and police went
to extraordinary lengths to extract from [Ellington] a confession by
psychological means...... Click here for the
complete decision.

(Court rejects confession obtained after suspect was promised by the
interrogator that he would testify for the suspect)

In State v. Bordeaux (2010)
the North Carolina Court of Appeals upheld the lower court's opinion to rule
the defendant's confession inadmissible because it was the result of a promise
of leniency.

"The
trial court found that during the interview, officers indicated to Defendant
that they would testify on his behalf and explain that he only made a mistake.
Thereafter, Detective Odham explained that "the Judge will look at that
and say 'Well damn, you know, we don't want to ruin this kid's life,' or
whatever the Judge will say. I don't know what the Judge will say ...."
While Detective Odham attempted to retreat from his initial statement by light
of the proposed testimony, other statements made throughout the course of the
interview helped to arouse in Defendant the hope of a more lenient sentence.
Several statements made by Detective Odham suggested that Defendant might still
have the opportunity to attend community college and that his future was
dependant upon cooperating during the interview. The trial court's findings
indicate that the detectives promised that they would speak on Defendant's
behalf and a benefit would result. When viewed in their totality, the Detectives'
statements during the course of the interview aroused in Defendant "an
'emotion of hope' " of lighter, more lenient sentence."

The Court of Appeals also pointed out that "In this case, the detectives'
suggestion that Defendant was a suspect in a murder investigation accompanied
by promises of relief made Defendant's statement involuntary. The officers were
fully aware that Defendant did not participate in the murder. The intended
effect of the detectives' query about the murder was to cause Defendant to be
"worried and off-balance." When coupled with the promises of relief,
the deception used by detectives rendered Defendant's confession inadmissible
at trial."Click here for the
complete decision.

(Promise of reduction in number of
counts coercive)

In US
v. Beaver (2008) "... the main thrust of Defendant's argument is that he was induced to confess by the
interrogating agents' promises of leniency." The court concluded
that "The Defendant clearly formulated the reasonable belief that the
agents were promising him a reduction in the number of counts charged and a
lighter sentence if he confessed to fondling the girls. Of particular
importance is the Defendant's insistence that Agent Frank's shake his hand. It
is clear that Defendant thought a deal had been struck and wanted this
handshake to memorialize the deal, a deal that he described as being the
agents' agreement to drop all but two counts contained within the indictment.
As a result of these circumstances, the Court is convinced the Defendant
believed he had been promised lenience." Click here for the
complete opinion.

(Interrogator's promise not to charge defendant
with a "fictional" murder if he told the truth resulted in a coerced
confession)
In Chambers
v. State (2007) the Fourth District Court of Appeal Florida found that
the trial judge erred in not suppressing the defendant's confession. The Court
of Appeal stated:

Chambers challenges law enforcement's suggestion that he could face murder
charges unless he told the truth as an impermissible promise not to prosecute
in exchange for the truth. Two decisions cited by Chambers and rendered by this
Court support his contention.

First, in Edwards v. State, 793 So.2d
1044 (Fla. 4th DCA 2001), this Court held a confession involuntary where it
ensued from an investigator's threat to hit a suspect with every charge he
could if the suspect did not tell the truth, and wrote:

Certainly, a threat to charge a suspect with more, and more serious, crimes
unless he or she confesses is coercive. Further, it is essentially a promise
not to prosecute to the fullest extent allowed by law if that person confesses.
Hence, the investigators' threats amounted to an exertion of improper and undue
influence, rendering the affected portion of Edwards' statement involuntary.

Likewise, in Samuel v. State, 898
So.2d 233 (Fla. 4th DCA 2005), this court held a confession involuntary where
it ensued from an officer's threat to charge the suspect with fifteen
robberies, where there was evidence of at most nine and probable cause for only
one, if he did not tell the truth, writing that "Fowler's promise not to
prosecute the other fictional crimes" was coercive and rendered the confession
involuntary.

Based on Edwards and Samuel, we reach the inescapable conclusion that Chambers'
confession which almost immediately ensued from what was essentially a promise
not to charge him with a "fictional" murder if he told the truth
rendered his recorded statement and confession unconstitutional as coerced and
involuntary.Click here for the complete
decision.

(Use of a
psychologically-oriented techniques during questioning is not inherently
coercive; request to have his mother in the room was not an assertion of his
right to remain silent)

In State v Faucette (January
2015) the Superior Court of New Jersey, Appellate Division, upheld the lower
court's decision that incriminating statements made by the defendant were
voluntarily made. From the Superior Court's decision:

"Defendant argues his confession was "the product of intimidation,
coercion and deception," as police capitalized on his fear of Clemons'
retaliation against him or his mother, essentially forcing him to talk. He
cites as a threat, Detective Craig's comment he would "drop [him] downstairs,"
meaning take him to the county jail where Clemons was being detained, "if
he didn't start talking."

Having considered the events depicted on the DVD, we reject defendant's
argument as lacking merit. Use of psychological tactics is not prohibited...
"Unlike the use of physical coercion, ... use of a
psychologically-oriented technique during questioning is not inherently
coercive." Such ploys may "play a part in the suspect's decision to
confess, but so long as that decision is a product of the suspect's own
balancing of competing considerations, the confession is voluntary."

Here, no physical force or threats of same were made. The interview was not
lengthy, lasting a little more than an hour. During the interrogation, there
were no signs defendant was fatigued, confused or under the influence of
intoxicating substances. Detective Craig's comments expressed frustration with
defendant's changing story, but the remark "[w]e're not offering to do
anything for you other than drop you downstairs in the middle of the population
and you fend for yourself," merely stated police responsibility to
effectuate the arrest warrant and place defendant in jail.

As to the police discussion of Clemons' past violence and affiliation with a
gang, these facts were known to defendant, who admitted he had known Clemons
for a long time. Police acknowledgement and discussion of these facts was not
the " 'very substantial' psychological pressure[ ]" necessary for
finding a defendant's will was overborne. Accordingly, we reject the notion
Detective Craig's comments acted to "strip[ ] defendant of his capacity
for self-determination and actually induce the incriminating
statement...."

Defendant suggests requests to have his mother present in the room constituted
equivocal assertions of his right to remain silent. We disagree.

Before Detective Craig informed him of the charges, defendant, who was age
twenty-two, asked "[w]here's my mom," as he thought "my mom[ ]
is gonna be here." Once informed of his arrest, defendant exclaimed,
"I thought you were going to be bringing my mom in here." Subsequent
to revealing his role in the robbery, defendant requested "[c]an my mom be
in here while ... we do this, please?" At that point, Detective Craig
replied "she's a little tied up right now," but later he would
"take a break at a certain point [and he would] go find out where she's at
[sic]...." Toward the end of the interview, defendant again asked for his
mother.

The Court recently considered the analytical implications of requests by an
adult to speak with someone other than an attorney, concluding that such
requests do not imply or suggest that the individual desires to remain silent.

The Court explained, "[a]lthough the mere request by an adult to speak
with a parent does not equate to an invocation of the right to remain silent,
it does necessitate a review of the context in which the request was
made." Often "it [is] not the request to speak with the parent, but
that request in the context of other facts that [gives] rise to the conclusion
that the right to silence had been invoked."
Here, defendant made an inquiry of his mother's whereabouts and repeated his
belief she was to be present. Detective Craig told him he would check during a
break and later advised defendant could see his mother before he was placed in
jail. Nothing about defendant's requests reflect continuation of the
conversation was contingent on his mother's presence. Rather, defendant's
statements suggest a desire for support and cannot be construed as an assertion
of his right to remain silent.

(Investigator's statement that it was time for the
defendant to "come to Jesus" was not a coercive statement)

In Singleton v State
(November 2015) the Court of Appeals of Mississippi found that the
investigators comment to the defendant that it was time to "come to
Jesus" did not constitute a coercive statement. From the court decision:

"Singleton asserts that his confession resulted from pressure and
intimidation from the investigators. Singleton testified that Investigators
Ellis and Huddleston "play[ed] good cop and bad cop," which led to a
feeling of intimidation. Singleton primarily contends, however, Investigator
Ellis coerced Singleton into confessing when he made the remark that it was
time for Singleton to "come to Jesus."

Singleton, a preacher for approximately fifty-four years, argues that
Investigator Ellis took advantage of his religious beliefs by using Jesus to
elicit a confession. The United States Supreme Court has held "coercive
police activity is a necessary predicate to the finding that a confession is
not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth
Amendment."

The Connelly Court further held "the Fifth Amendment privilege
[against self-incrimination] is not concerned 'with moral and psychological
pressures to confess emanating from sources other than official coercion.' In
fact, the Supreme Court has found that the use of religious references does not
automatically render a confession involuntary.

In this instance, Investigator Ellis told Singleton that it was "time to
come to Jesus" after the investigators played the tape-recorded
conversation between Singleton and Daniel, and Singleton continued to deny his
involvement with Daniel. Investigator Ellis testified his use of the phrase was
merely to get Singleton to tell the truth in light of the incriminating
evidence.

The Mississippi Supreme Court held that "[a] mere exhortation to tell the
truth is not an improper inducement that will result in an inadmissible
confession." While Singleton stated he found the remark offensive,
Investigator Ellis testified he did not use any threatening or intimidating
language or tone that would constitute coercion. This inducement to tell the
truth without more does not rise to the level of coercion. Thus, the religious
reference did not render Singleton's statement involuntary."

In US v. Harper (September
2014) the US District Court, W.D. Kentucky, upheld the defendant's
incriminating statements that she had given to agents from the Social Security
Administration Office of Inspector General office. From their opinion the court
stated the following:
Defendant, Janet Harper, is charged in Count 1 of the Indictment with knowingly
receiving and retaining stolen property of the Social Security Administration
consisting of $82,468.02 in supplemental security income benefits. In Count 2
of the Indictment, Defendant is charged with knowingly executing a scheme and
artifice to defraud the Medicaid Program by falsely representing her living
situation and marital status. On July 8, 2014, Defendant filed a motion to
suppress "any and all statements, admissions and confessions allegedly
given by the defendant, whether oral, written or otherwise recorded, which the
government proposes to use as evidence against her" based on allegations
that that they were involuntary and taken against Defendant's Fifth and Sixth
Amendment rights.

At the evidentiary hearing, Agent Baker, Agent Krieger, and Defendant testified
that after the Defendant entered the interview room, the Agent informed her of
her rights. Specifically, Agents Baker and Krieger testified that Agent Baker
read the non-custodial rights form to the defendant that provided in part as
follows: "You have the right to remain silent and make no statement at
all. Any statement you do make may be used as evidence against you in criminal
proceedings. You are not in custody. You are free to leave and terminate this
interview at any time." (United States' Exhibit 2.) Defendant signed the
signature line on the form and printed her name below the signature line.
Defendant acknowledged signing the form and being informed of her rights. In as
much as Defendant argued in her initial motion to suppress that her statements
should be suppressed as a result of a violation of her rights pursuant to Miranda
v. Arizona, 384 U.S. 436 (1965), the motion is denied.

First, the Court finds that Agent Baker and Agent Krieger did not trick
Defendant into signing the statement admitting that she made false statements
regarding her living arrangement in her applications for supplemental social
security benefits. After considering the testimony of the Agents, Janet Harper,
and Ronald Harper, the Court credits the testimony of the Agents regarding the
events of the interview. The Court finds that during the interview, Agent Baker
informed Defendant he had reason to believe that statements given by her to the
Social Security Administration over an 11 year period were false. Defendant
admitted that those statements were false, and she voluntarily initialed the
statements to acknowledge their falsity. At the request of the Defendant, Agent
Baker wrote out the Defendant's statement based on things she communicated
during the interview, read the entire statement aloud to the Defendant, and
gave the Defendant the opportunity to correct the statement. The Defendant
indicated the content of the statement was correct and signed it.

Second, the Court finds that the Defendant's mental condition, medication, lack
of medication, or feelings of sadness and nervousness did not render the
statement made by Defendant nor the signing of the statement in question
involuntary. The Agents testified that Defendant's demeanor during the
interview was calm and even-keel; she did not appear to be upset. She talked in
a normal tone. Agent Baker testified that she did not appear to have any
physical impairment, did not appear to be under the influence of any drugs or
alcohol, and did not have any difficulty answering the questions. During the
interview, Agent Baker questioned Defendant if she was under the influence of
any drugs or alcohol, and she indicated that she was not. Further, the Agents
testified that Defendant's behavior did not indicate that she had anything
wrong with her mental state that would impair her ability to participate in the
interview. The Court credits the Agents' testimony on this issue finding that
Defendant was calm, alert, and responsive at the time of the interview."

In Mauldin v. Cain (August
2014) the US District Court, E.D. Louisiana upheld the lower court's decision
not to suppress the defendant's incriminating statements and to reject the
suggestion that the presence of a Bible in the interrogation room was coercive.In their opinion the court stated that, "Contrary
to Mauldin's argument, defense counsel raised the issue of the Bible in the
chair next to Mauldin during the police interview. The record reflects that
both the prosecutor and defense counsel questioned the officers about the
Bible, described as a "little Gideon Bible" that was on the chair next to
Mauldin and which could be seen in parts of the video.Sergeant Troy Tervalon testified that he
placed the "small version" of the Bible in the chair before the interrogation
started.He stated that he put it there so that
Mauldin's "conscience would kick in, to tell the truth." He indicated that he
said nothing to Mauldin about the Bible and placed it there before Mauldin was
brought into the room. It was
just a technique he used.

The
record demonstrates that Mauldin's counsel did take issue with the presence of
the Bible during the interview and included the argument to bolster the alleged
coercive circumstances forming the basis of the motion to suppress the
confession. Mauldin's suggestion otherwise is without factual support.

In addition, there is no law to suggest that the mere
presence of the Bible would have been sufficient for counsel to establish
coercion of the confession. See Williams v. Norris, 576 F.3d 850, 868–69 (8th Cir.2009) (references
from the Bible and appeals to God are not alone coercive); Williams v. Jacquez, No. 05–0058, 2011 WL 703616, at *24 n. 19 (E.D.Cal.
Feb. 19, 2011) (officers indicating during interview that the
Bible instructs that a person tell the truth), order adopting aff'd,472 F. App'x 851 (9th Cir .), cert.
denied,––– U.S. –––, 132 S.Ct.
378 (2012). Thus, counsel was under no professional
obligation to re-urge that point by separate motion to suppress when the
argument was already rejected by the Trial Court. See Smith v. Puckett,
907 F.2d 581, 585 n. 6 (5th Cir.1990) ("Counsel is not
deficient for, and prejudice does not issue from, failure to raise a legally
meritless claim."); see also, Koch v. Puckett,
907 F.2d 524, 530 (5th Cir .1990) (concluding that "counsel
is not required to make futile motions or objections."); see also, Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir.2007) (" '[f]ailure to
raise meritless objections is not ineffective lawyering; it is the very
opposite.' ") (quoting Clark v. Collins,
19 F.3d 959, 966 (5th Cir.1994)).

Relief on this claim was properly denied by the state courts
and the denial was not contrary to Strickland. Mauldin is not entitled
to relief on this point."

In U.S. v Thomas (May 2014) the US
District Court, N.D. Illinois, upheld the admissibility of the defendant's
confession, but cautioned the investigators that they were operating at the
outer bounds of permissible conduct.From the court's opinion:

"Defendant argues that the use of his statement at trial
would violate his Fifth Amendment right against self-incrimination because he
was impaired by his pain medication and therefore lacked the capacity to make a
voluntary confession.

Defendant
argues that the agents' coercion began with their failure to identify
themselves and the purpose of their visit. He also claims that the agents
coerced him because they misrepresented the intended length of the interview
and interviewed him knowing that he was impaired by his medication. The Court,
aided by the factors listed above, comes to a different conclusion. Defendant
is an adult and possesses a sufficient educational and intelligence level to
run his own business. The interview was less than two hours in length.
Defendant testified that Special Agent Dahlgren grew aggravated during the
interview when Defendant contradicted him, but Defendant remained undeterred in
clarifying his statements to the agents. In addition, Defendant alleges no use
of physical punishment. As discussed above, Defendant was not admonished of his
constitutional rights because he was not in custody. Using the multi-factor
test laid out by the Seventh Circuit, the Court cannot find any evidence of
coercion by the agents.

Although
Defendant has not proven any constitutional violation was committed by the
agents, the Court is troubled by the agents' investigative tactics. Special
Agent Colin testified that she was aware that Defendant was represented by Sam
Adam, Jr. Even if Defendant stated during the interview that Adam was not
representing Defendant "at that time," Special Agent Colin read the
correspondence sent by Adam to the CTA declaring that he was representing
Defendant in any investigation pertaining to Thomas Painting and Decorating.
The agents took advantage of Defendant's lack of legal prowess in order to run
an end-run around his Fifth Amendment rights. While Defendant's assertions
regarding his mental state are not compelling enough to invalidate the
voluntariness of his confession, the Court notes that this entire dilemma could
have been avoided if the agents had simply contacted Defendant's attorney prior
to conducting the interview. Unfortunately, the Court cannot locate, and
Defendant has not provided, any case law to suggest that the agents' tactics
warrant a suppression of his statement. Indeed, a government agent's deceitful
conduct does not render a confession inadmissible absent threats or promises by
the agent.... The Court recognizes that government agents must zealously pursue
alleged criminal wrongdoing. Nonetheless, the Court warns HUD and DOL that, in
this instance, their agents operated at the outer bounds of permissible conduct
under the Fifth Amendment."

(Statement
the defendant would be taken home if he was honest did not require exclusion of
the statement)
In Sparrow v. State (2013)
the Court of Appeals of Georgia, found that telling the suspect that he would
be taken home after the questioning if he was honest with the investigators did
not make the confession involuntary. The court stated the following:

"On appeal, Sparrow argues that the trial court erred by admitting his
confession because it was not voluntary. He points to Mann's promises of
secrecy and that he would take Sparrow home after the interview if Sparrow was
honest with him. But based on our review of the videotape, it is clear that
Mann did not promise anything with respect to prosecution for the burglary.
Mann had told Sparrow that he still needed to speak with the victim of the
crime to determine what would happen next, thus, Mann's promise was merely that
he would take him home after questioning and not that Sparrow would be free
from future charges. A promise to take the suspect home after questioning--not
relating to ultimate charges or sentences for the suspected crime--is merely a
collateral benefit that does not require automatic exclusion of the
confession... Further, ... a promise of secrecy shall not require exclusion of
the statement, so Mann's promise not to tell Sparrow's sister or his parole
officer about the drug use does not render Sparrow's statement involuntary.
Based on the totality of the circumstances, the record supports the trial
court's determination that Sparrow's statements were not subject to
exclusion...Click
here for the complete decision.

(Detective's statements during the interrogation
telling defendant that he thought she was lying were admissible)
In Johnson v. Commonwealth(2013) the Supreme Court of Kentucky upheld the lower court's decision to
allow the jury to hear audio tapes of the defendant's interrogation in which
they heard the investigator say he thought the defendant was lying.

From the court's opinion: "The recordings contained instances of a
detective telling the Appellant that he thought she was lying... Appellant
initially objects to the playing of the tapes because they contain repeated
instances where the interrogating detective expressed his opinions about
whether the Appellant was telling the truth about the circumstances of the
victim's death. Specifically, he stated on tape that Appellant "put [the
bruise] there" and "punched him in the back." As the interview
progressed, Detective Allen appeared to express more frustration, yelling
"I'm so sick ... of your bullcrap, bullcrap, bullcrap! You keep sitting
there saying [that the police are] lying! When twelve jurors are sitting there,
we'll see who's lying!"

.....Appellant pleaded with Detective Allen that she was telling the truth, to
which Detective Allen responded "I'm not buying into that. I'm wasting my
time ... two days interviewing you ... we've got enough for an arrest ... tell
[your story] to twelve jurors.".

The issue with playing these audiotaped interrogations in their entirety,
specifically the portions of them that contain statements made by a law
enforcement official that suggest, if not explicitly state, that the officer
believes that the defendant is lying, is very similar to a witness
characterizing the testimony of another witness as "lying." It has
long been the law of this Commonwealth that a "witness's opinion about the
truth of the testimony of another witness is not permitted.... That
determination is within the exclusive province of the jury...... Technically
speaking, however, when an officer makes statements during an interview
accusing a person of lying, neither the officer nor the person is a witness at
that time. The question, then, is whether the principle in Moss extends
outside the courtroom so as to make it unduly prejudicial to allow a jury to
hear the portions of an interrogation of a criminal defendant wherein an
officer accuses the defendant of lying.

This Court addressed this precise issue in Lanham v. Commonwealth, 171
S.W.3d 14 (Ky.2005), and held that such statements are admissible. In so
holding, the Court decided that Moss did not extend to recordings of police
interrogations and stated:

We agree that such recorded statements by the police during an interrogation
are a legitimate, even ordinary, interrogation technique, especially when a
suspect's story shifts and changes. We also agree that retaining such comments
in the version of the interrogation recording played for the jury is necessary
to provide a context for the answers given by the suspect.'Click here for the
complete decision.

("the very outer limit as to what tactics law enforcement may employ
when performing a custodial interrogation")

In Martin v. State (2013) the Supreme
Court of Florida addressed the defendant's claim that this confession was
coerced by the detectives who he claimed "relied upon the following six
coercive tactics to induce his confession: The police (1) threatened him with
the spectre of death row; (2) deluded him as to what he could expect for
himself and from a jury if he confessed; (3) deceived him as to the amount of
time he had to cooperate with law enforcement; (4) promised their favorable
testimony and use of their influence during his trial if he cooperated; (5)
promised to arrange a visit for him with his girlfriend if he cooperated; and
(6) exploited his religious beliefs by relying on a version of the "Christian
burial" interrogation technique."

The Supreme Court ruled that
"When considering the facts, relevant standard of review, and totality of the
circumstances, we do not agree with Martin that the detectives coerced his
confession. Nevertheless, some of the techniques the detectives employed walked
the line that separates permissible from impermissible interview tactics, and
we, as a result, note that this case presents the very outer limit as to what
tactics law enforcement may employ when performing a custodial interrogation."

The
Supreme Court concluded, "The interviewing detectives engaged in a variety of
tactics to elicit information from Martin. Given the specific factual
circumstances addressed in this case, however, we do not agree with Martin's
contention that the interviewing detectives coerced his confession, thus
rendering it inadmissible. Law enforcement must be afforded some leeway in how
they conduct interrogations to ensure public safety and to further... their
objective of locating a missing person who might still be alive. The interview
here cannot be characterized as so coercive as to render Martin's confession
involuntary. Although some of the tactics and techniques used by the detectives
may have been less than ideal, West and Wolcott did not directly threaten,
deceive, or delude Martin into confessing. Therefore, we affirm the trial
court's denial of Martin's motion to suppress."Click
here for the complete decision.

(Claim that the implication
of a lighter sentence resulted in a coerced confession rejected)

In Van Jackson v. State (2012)
the decision by the Texas Court of Appeals, Austin, points out the value of
investigators video recording the interrogation.In their decision the court stated
that , "Jackson argues that the video proves that he was "fatigued,
hungry, injured[,] and left isolated in a small room for some time" and
that the detective induced his confession by suggesting that he might receive a
lighter sentence if he was honest and apologized for robbing Rivas. However,
the detective never made a positive promise to Jackson that he would receive a
benefit by confessing. Rather, he told Jackson that juries want to hear
defendants say they are sorry and that prosecutors want to know if defendants
are cooperative, truthful, and apologetic. These general statements were not
enough to render Jackson's statements involuntary.....

...... Although Jackson was arguably tired during the interrogation, the video
shows that he was alert, coherent, and could answer the detective's questions.
The detective's questioning lasted less than twenty minutes, and at no time was
the detective threatening or overbearing.... Therefore, we conclude that Jackson's
confession was voluntary, and the trial court did not err in denying Jackson's
motion to suppress the confession. Jackson's second point of error is
overruled.Click here for the
complete decision.

(Statements to the defendant that his denials
were "bullshit" and that he was "kind of screwed" and that
he was "fucked" were not threats)

In Moore v. Scribner (2011)
U.S. District Court, C.D. California rejected the defendant's claim that his
confession was coerced by threats and lying about the evidence. From the
court's opinion:

"Petitioner cites the following "threats" by Carr. During the
first interview, Carr told Petitioner that his denials were
"bullshit." ... Carr told Petitioner: "You're in deep trouble if
you continue to feed me a line of bullshit." ... Carr also told Petitioner
that because the police has physical evidence contradicting Petitioner's story,
he was "kind of screwed." ... During the second interview, Carr told
Petitioner he could "prove" Petitioner was at the scene of the
crime... Carr added: "I don't believe you shot the man. What I do know is
you're fucked unless you can come up with a reason and explain to me what
happened."

None of Petitioner's allegations rises to the level of a threat indicating
Petitioner's confession was coerced. Carr's statements that Petitioner was in
"deep trouble," was "kind of screwed," and was
"fucked" were designed to induce Petitioner to tell the truth. Carr
did not threaten Petitioner with any specific consequence if Petitioner failed
to confess.

Petitioner argues that Carr's misrepresentations about the evidence constituted
coercion. ... During the first interview, Carr told Petitioner there was
"physical evidence" that placed Petitioner at the crime scene... When
Petitioner asked what evidence, Carr did not respond... During the second
interview, Carr said the police had lifted fingerprints from Bennett's
apartment door and a glass table inside the apartment, and the fingerprints
matched Petitioner's.... After Carr continued to push for a reasonable
explanation, Petitioner finally stated that "[i]t was a robbery."

Standing alone, Carr's misrepresentations would be insufficient to render
Petitioner's confession involuntary. Petitioner also argues Carr made promises
of leniency. Petitioner argues Carr told Petitioner that unless Petitioner gave
a "reasonable explanation" for what occurred, he would be "fucked,"
whereas if he gave a reasonable explanation, he would be "set ...
free." ... Petitioner's contention distorts the record. While Carr
repeatedly asked for a "reasonable explanation"..., there is no
evidence Carr promised leniency. Telling Petitioner that he's
"screwed" or he's "fucked" if he does not cooperate... does
not amount to a promise of leniency. Telling Petitioner that his
"cooperation is gonna go a heck of a long way" is not a promise of
leniency.Click here for the
complete decision.

(Interrogator's "empathetic and caring
demeanor" was not coercive)

In People v. Powell (2012)
Court of Appeal, First District, Division 3, California, the court upheld the
admissibility of the defendant's confession, finding that "There was no
improper coercion here. It is no exaggeration to say that Sergeant Alexander
came across more like a mentor than a police officer during the interview. He
spoke about family, character, overcoming problems, accepting responsibility
for wrongdoing, and becoming a better man. He urged Powell to "walk the
righteous path," to "do the right thing," to "tak[e]
control of your life." He touched Powell gently on the leg and shoulder
and said he was a good person who never intended for someone to die. "[O]n
that day you made a bad decision. But ... your decision was not as bad as the
outcome. You're not a killer." He told Powell that he cared about him and
his mother, and that he believed Powell was "put on this earth to excel
and succeed in life. And, unfortunately, you're not, you are making decisions
that aren't good up 'til this point. This could be a turning point." He
urged Powell to help himself and "do what's best for you right now."
He invited Powell to think about a future life, family and career "when
this is all said and done...."

"But, at no point during the interview did either officer expressly or
impliedly promise Powell that he might not be charged with, prosecuted for, or
convicted of the murder if he cooperated. They did not suggest that Powell
could influence the decisions of the court or district attorney, but simply
suggested that his truthfulness would be beneficial in an unspecified way.
Indeed, Sergeant Alexander said he did not know what kind of charges would be
brought and that those decisions were made by other people. Under the
circumstances, the officer's suggestion that it would be better for Powell to
tell the truth and promptings to consider his future did not amount to a
promise of leniency. .. Click
here for the complete decision.

(Statements such as, "these things happen,
it is ok"; "we don't believe you had any intentions of doing it"
and "a tragic accident occurred" do not offer a promise of leniency)

In US v. Hunter (2012) the US
District Court, E.D. Virginia, upheld the lower court's decision to admit the
defendant's confessions. "The facts and circumstances in this case
establish that Hunter's statements were "voluntary" for
constitutional purposes. Though still in her early twenties, the defendant was
not a juvenile at the time of C.P.'s injuries or her interrogation. There is no
evidence in the record that Hunter lacks education or has low intelligence.
Neither Agent David nor Investigator Hampton harmed or threatened to harm
Hunter if she did not answer their questions.

... "Of all the facts pertaining to the voluntariness of Hunter's
statements, the most concerning are Agent David's intentional efforts to
minimize the seriousness of the defendant's criminal exposure, which certainly
had the potential to cause Hunter to discount her own assessment of her
jeopardy, as evidenced in her initial description of events. The defendant also
claims that by making such statements as such as "these things happen, it
is okay", "no one is going to fault you for it", "we don't
believe you had any intentions of doing it", and "a tragic accident
occurred" [Doc. No. 33], Agent David made an "implied promise"
that if Hunter were to admit to shaking C.P., she (Hunter) would suffer no
punishment. Likewise, the defendant argues that Agent David impermissibly
induced her statements by suggesting that she (Hunter) needed to provide
accurate details of how C.P. was injured in order to maximize the chances of
C.P.'s recovery. Based on these and other statements, the defendant claims that
overall, her will was "overborne" by Agent David's tactics and that
her "capacity for self-determination was critical impaired,"
particularly when Agent David allegedly conditioned Hunter's ability to see her
husband on her willingness to confess.

... "In this Circuit, only certain types of promises, when not kept, will
render a resulting confession involuntary.... These promises are limited to
explicit statements by the questioning official that he will do, or not do, a
specific act, in exchange for the confession... Moreover, the cases that have
suppressed statements on the basis of an implied promise involve promises that
were compelling in terms of the consequences that would befall the defendant or
those associated with the defendant.

,,, "Agent David's statements were not so much promises as they were
opinions concerning the criminality of Hunter's conduct and how it would be
viewed by others. While Agent David's repeated assurances that she understood
how Hunter must have felt and that she (Agent David) believed the incident was
an accident were no doubt persuasive and inducing, nothing in those statements
constitutes a quid pro quo promise to Hunter in exchange for a confession.
Based on all the facts and circumstances, the Court finds that that Agent David
did not make a promise to Hunter that vitiates her confession.Click here for the
complete decision.

(The statement that questioning could go the
"easy way" or the "hard way" does not constitute a threat when
the statement is viewed in context.)

In People v. Frith(2012)
the Court of Appeal, Second District, California upheld the admissibility of
the defendant's confession, even though the defendant was told that the
questioning could go the "easy way" or the "hard way" which
he claimed was an implication of physical force. From the Court of Appeals
decision:

Our review of the record reveals no substantial indicia of deception, undue
pressure, or coercion by the detectives.... First, defendant's argument that
Detective Durden's statement that questioning could go the "easy way"
or the "hard way" implied the use of physical force takes the
statement out of context. Directly after stating they could do it the easy way
or the hard way, the detective explained, "The easy way is, that you [are]
up front and honest. The hard way is, you want to play the game. Okay. If you
want to play the game I have her story." Detective Durden went on to state
there were always three sides to a story--his, hers, and the truth. Taken in
context, it is clear the detective was exhorting defendant to tell the truth
and even went so far as to indicate that he did not give defendant's story less
weight than Breanna's. There was no threat, express or implied, in the
detective's statements. A confession is not involuntary, where, as here,
"[the detective] did not cross the line from proper exhortations to tell
the truth into impermissible threats of punishment or promises of
leniency."

Defendant next argues that when Detective Durden suggested he was
"shucking and jiving," defendant believed the detective was accusing
him of lying and felt intimidated by the detective's tone and body language.
Even aggressive accusations of lying do not amount to coercive threats absent
threats of punishment or promises of leniency.... In Joe R., the court held
that a minor's confession was voluntary even though the police accused him of
lying "loudly, emphatically, and with terse language (e.g.,
'bullshit')...." ... Defendant does not claim to have suffered any
language stronger than "bullshit," and as a 43-year-old man and a TSA
officer, he was far less likely to have felt coerced by the implication that
the officers believed he was lying than the 17-year-old boy in Joe R. Any
implication by the detectives that defendant was lying does not invalidate his
confession.Click
here for the complete decision.

(Court
rejects claim investigators made "misleading
and manipulative comments" that coerced the confession)

In People v. Flores (2012)
the Court of Appeals, 4th District, CA rejected the defendant's claim that the
"Detective Rondou's comments during his interview "were calculated to
make [him] believe he would be legally benefitted by explaining his role in the
crime to them." .... To support his argument, Flores cites the following
comments from the interview:

"This is your opportunity to tell the truth ... 'cause if you were with
somebody and they did something stupid that you didn't know about, that's on
them. Let them deal with that but don't make this about you by lying about it
because you're only, not only trying to help yourself, you're trying to help
the other person...?"

"If you sit in here and lie about it, if you know that somebody did
something wrong like that and you lie about it for them, that's helping them
after the fact. That could cause you problems down the road."

"[W]hatever you say in here is what you have to live with down the road.
We've had a lot of guys that we talk to them like this and then, you know,
things go the way that they go and then they sit there and they, they look at
us and say, man, I wish I would have told you when I had the chance. You know,
all of a sudden now they're sitting in court."

"This isn't new and I've had countless times, most of the guys tell me,
but the guys that didn't, countless times when they've looked over at me in
court, [ ]cause we're sitting with them at the table, damn man, I wish I had
told you that day, and I look back and say, I told you to tell us that day. [P]
... [P] We gave you every chance and now look at you.... [W]e know you got
caught up in some stuff that you weren't planning on doing.... As men, we put
it on the table, we deal with it.... It's not the end of the world but you [
sic ] sitting in here lying. All that does is make us think you had a bigger
deal in this, whether you were the one that planned this out or you had a
bigger role than what you really did...."

"This is your chance to tell your side of the story. If you want to go
with what other people told us it's not going to be good for you."

Flores cites these statements as some of the "misleading and manipulative
comments" made to him. He argues "[o]ver and over [the] police
extolled the benefits of telling them the truth, and stated that it was his
last chance, his one and only chance to reap the benefits of telling the
truth."

The officers' statements were permissible exhortations to tell the truth. It
was not objectionable to emphasize the dangers of lying to the officers, which
if later discovered, would damage Flores's credibility. As the Attorney General
notes, the officers did not tell Flores he would receive any legal benefit if
he told the truth and admitted his involvement. Statements suggesting a
defendant has one chance to cooperate with the police and tell his version of
the facts generally are permitted. (See United States v. Gamez (9th
Cir.2002) 301 F.3d 1138, 1144 [officer's "comment that it would 'behoove'
[defendant] to disclose what he knew about [the victim's] murder and that this
was his 'last chance' to come forward does not amount to coercion"].) Click here for the
complete opinion

(The police
can lie to a suspect by telling him that they are not recording the interrogation
when they actually are)

In Evans v. Phelps (2012) the
U.S. District Court, D. Delaware, upheld the court's decision to admit the
suspect's confession even though the police had lied to the suspect when they
denied that they were recording the interrogation. From the District Court's
opinion:
"In his second sub-argument, Petitioner contends that his due process
rights were violated by the admission of the confession, because Lieutenant
Jamison's untruthful remark that the interrogation was not being videotaped
amounted to police coercion and rendered Petitioner's confession involuntary.

[I]t is clear from the videotape of [Petitioner] with Lieutenant Jamison that
[Petitioner] was advised of his Miranda rights, and that [Petitioner] waived
those rights knowingly, intelligently and voluntarily. Moreover, we agree with
the Superior Court that [Petitioner's] inquiry of Lieutenant Jamison mid-interview
as to whether the interrogation was being videotaped was not, as [Petitioner]
argues, an invocation of his Miranda rights.

Here, Petitioner asked Lieutenant Jamison "Is this being recorded?"
(D.I. 49, Evans v. State, No. 471, 2007, Appellant's App. # 1 at 27)
Lieutenant Jamison responded, "No. I will get you to write whatever you
confess to." Id. Nothing in this exchange indicates an unambiguous request
on Petitioner's part for counsel or an unambiguous invocation of his right to
remain silent. Therefore, the Court concludes that the Delaware Supreme Court's
denial of Petitioner's first sub-argument was based on a reasonable
determination of facts, and was neither contrary to, nor an unreasonable
application of, clearly established Federal law.Click here for the
complete opinion

(It
was not a promise of leniency when the suspect
was told he would "only be a witness if he had merely been present but had
not been a shooter.")

In Thlang v. Jacquez (2012)
the U.S. District Court, E.D. California, upheld the Appeal's Court's decision
to reject the defendant's claim that "his statements after Detective
Seraypheap urged him to be a witness rather than a suspect were involuntary and
inadmissible because this was an implied promise of benefit or leniency which
induced him to admit he was present at the shooting. In his view, the
witness/suspect dichotomy was a false representation that admitting he was
present "would result in his being a mere witness and not a suspect and
his release from custody."

"As the trial court noted, defendant was strong-willed and was
sophisticated about the nature of police interrogation tactics in a serious
case. Detective Seraypheap had earlier told him that regardless of whether he
did the shooting or not, "I'll tell you this right now, you can't get off
the hook. You have to answer to it." After making the witness/suspect
remark and before the incriminating admission, the detective told defendant
that denying he was present "hurt[s] your case more." This, too,
implies that there will be a case against defendant regardless of an admission
of presence. Click here for the
complete decision.

(Court finds use of a videotape as a prop
during an interrogation acceptable)

In People v. Lewis (2012) the
Supreme Court, Appellate Division, Fourth Dept., New York upheld the
admissibility of the defendant's incriminating statements. On appeal the
"Defendant further contends that one of his statements to the police was
involuntary inasmuch as it was obtained as a result of police deception, i.e.,
the use of a videotape as a prop, and as a result of the conduct of the police
in attempting to capitalize on the potential criminal liability of defendant's
girlfriend. We reject that contention. "Deceptive police stratagems in
securing a statement 'need not result in involuntariness without some showing
that the deception was so fundamentally unfair as to deny due process or that a
promise or threat was made that could induce a false confession' .... Under the
circumstances of this case, the fact that the police used a videotape as a prop
does not warrant suppression."Click
here for the complete decision.

(Interrogating a suspect after continued denials not
coercive)

In Murga v. State (2012) the
Court of Appeals of Texas upheld the admissibility of the defendants
confession, even though the defendant claimed his statements were coerced. In
examining the circumstances surrounding the interrogation, the court reported
that, "Both detectives testified they did not coerce or harass appellant
into making a statement against his will and that appellant freely and
voluntarily spoke to them; at no time did appellant ask to terminate the
interview or state that he wanted an attorney. Appellant was offered
necessities such as food, water, and bathroom breaks. The record reflects that
appellant never complained that any lack of sleep or anything else rendered him
unable to continue with the interview. Lopez testified the method of
interrogation the detectives used was not to accept appellant's denials and to
continue the interview until appellant told the truth. Appellant was accused
several times of lying when he denied committing the crime, and he was encouraged
to tell the truth even when he was crying. There were long periods of time when
appellant was in the interview room alone.....

Viewing appellant's confession under the totality of the circumstances, we
conclude the trial court's findings and conclusions that appellant's confession
was voluntarily made and thus admissible are supported by the record. Appellant
was informed of his Miranda rights, and he stated more than once that he
understood his rights. Although the detectives continued to encourage appellant
to tell the truth after he denied involvement in the offense, they did not
threaten or coerce appellant during the approximately five hours they actually
interviewed him."Click here for the
complete decision.

(Telling
defendant length of punishment and misrepresenting evidence not coercive)

In People v. Riley (2012) the
Court of Appeal, Fourth District, Division 1, California upheld the
admissibility of the defendant's confession even though the interrogator stated
the possible punishment she was facing and misrepresented the evidence against
the defendant. In their opinion the court points out the following:

"Riley contends she was coerced into confessing by Vasilis's promises of
leniency in exchange for cooperation. Riley claims Vasilis's statement that
they were discussing "something that could ... give you a, a sentence if
you get to like youth authority till you're twenty-five or for life" was a
promise to treat her as a juvenile if she confessed, or as an adult if she
refused.

We acknowledge the weight of opinion condemning promises of leniency.... However,
we reject Riley's assertion that Vasilis's comment amounted to such a promise.
There is no indication in the record that Vasilis implied Riley would receive a
juvenile sentence instead of a life term for cooperating, and Riley's assertion
to the contrary is a mischaracterization. Vasilis stated the possible sentences
Riley might face for murder, including incarceration in the youth authority
until the age of 25 or life imprisonment, but did not suggest her confession
would be a factor in determining the outcome in her case. ... he simply outlined
the maximum sentences possible for her crime depending on her age, a
distinction he made no claim of control over. A bare mention of consequences,
absent some promise or threat, cannot overbear a defendant's will.... The
evidence thus shows Vasilis's statements, however characterized, did not have a
coercive effect upon Riley. Rather, Riley's internal guilt led to her
confession.

Riley next claims her statements were involuntarily because Vasilis lied to her
about the existence of surveillance video. We disagree. While "police
deception is a factor to be taken into consideration" when determining
whether a confession is voluntary, deception alone will not invalidate a
confession..... Our courts have allowed numerous instances of police mendacity,
including those "far more intimidating and deceptive" than those
employed here..... Generally, deceptive interrogation techniques only cross the
line when they are of a type "reasonably likely to procure an untrue
statement." ... Put another way, deception only mandates reversible error
when it overbears the will of the suspect to the extent that confession becomes
preferable even to the truth. Click here for the
complete decision.

(Promise to keep the suspect's name out of the
media will not invalidate the confession)

In State v. Alaniz (2011) the
Court of Appeals of Texas (Corpus Christie) ruled that the trial court abused
its discretion when it found that an improper promise induced Alaniz to
confess. During the interrogation the investigator stated to the suspect
"we were going to do our very best to keep her out of the media."

The Court of Appeals stated that, "... the record supports a finding that
Detective Lerma was explaining the policy of the police department to Alaniz,
i.e., explaining how the department handled victims of alleged sexual
assault... The trial court was unreasonable in isolating Detective Lerma's one
statement made while articulating department policy and in concluding that
because the one statement focused on Alaniz's concerns about the victim, it was
a promise on the part of the detective that rendered Alaniz's confession
invalid.

Furthermore, even assuming that Detective Lerma's statement was a promise, we
agree with the State that there is no evidence that the promise induced Alaniz
to confess or depended upon his confession. The court of criminal appeals has
held that an " 'if-then' relationship [is] required to establish [such] a
promise." .... "[T]here must be some indication that the police
"induce[d] appellant to confess by implicitly or explicitly suggesting a
'deal, bargain, agreement, exchange, or contingency.' " ..... In other
words, it is a promise made in exchange for a confession that is prohibited,
not some free-standing promise untied to the decision to confess. Click here for the
complete opinion.

("Incessant questioning or demands to
tell the truth" do not render a confession inadmissible)

In Bolton v. McEwen (2011),
the U.S. District Court, N.D. California, upheld the trial court's decision to
admit the defendant's incriminating statements. I their opinion the District
Court outlined the following:

Bolton maintains that his statement to police should have been excluded as
involuntary because the interrogation was lengthy, coercive, and included
"incessant" demands to admit he killed Barfield. When an
interrogation is recorded, as it was here, the facts surrounding the giving of
the statement are undisputed, and we independently review the determination of
the trial court on the ultimate issue of voluntariness.

" '.....Questioning may include exchanges of
information, summaries of evidence, outline of theories of events,
confrontation with contradictory facts, even debate between police and
suspect.... Yet in carrying out their interrogations the police must avoid
threats of punishment for the suspect's failure to admit or confess particular
facts and must avoid false promises of leniency as a reward for admission or
confession...."

Bolton first argues that the officers' "incessant" demands that he
admit his involvement and their statements that they "knew" he did it
rendered his confession involuntary and unreliable. Bolton's argument appears
to be that he was coerced into confessing because the detectives were not being
truthful about "knowing" that he killed Michelle. Police deception
during interrogation, however, is not necessarily impermissible..... "Police trickery that occurs in the
process of a criminal interrogation does not, by itself, render a confession
involuntary and violate the state or federal due process clause. [Citation.]
Why? Because subterfuge is not necessarily coercive in nature.... And unless
the police engage in conduct which coerces a suspect into confessing, no
finding of involuntariness can be made.

Next, Bolton maintains that the detectives' "incessant" questioning
during the "lengthy" interrogation rendered his confession
involuntary. Our review of the videotape of Bolton's interrogation reveals
otherwise. The interrogation lasted for only two hours, hardly
"lengthy." The detectives, though insistent at times, never
threatened Bolton or even raised their voices. Bolton did not appear confused
or exceptionally fatigued. Much of the detectives' questioning involved
background information and the sequence of events on the evening of the
killing. The detectives pointed out inconsistencies between his and J.'s
statements, and questioned him about his improbable claim that "some
dudes" attacked his wife, yet he failed to try to help her or call police.
Click here for the
complete opinion.

(Telling a suspect "that if he cooperated
and told the truth, he would get more points off his ultimate sentence under
the federal Sentencing Guidelines" was not a promise of leniency that would
nullify the confession)

In US
v Delaney (2011) the U.S. District Court of Appeals, Sixth Circuit
found that such a statement did not render a confession inadmissible. In their
discussion as to what constitutes an acceptable promise, the court stated the
following:

"The first prong of the Mahan test asks whether the agents' statements
were objectively coercive. A promise of leniency in exchange for cooperation
may be a relevant factor in determining whether a confession was involuntary.....
Nevertheless, such statements usually are permissible.... In general, such promises are coercive
only "if they are broken or illusory."

We have found that "promises to inform a prosecutor of cooperation do not,
ipso facto, render a confession coerced."...... Similarly, promises "to recommend
leniency" or "speculation that cooperation will have a positive
effect" do not make subsequent statements involuntary.

Here, the agents explained to Delaney that if he cooperated and told the truth,
he would get more points off his ultimate sentence under the federal Sentencing
Guidelines. They also explained that his chances of going home that day were
greater if he cooperated. Certainly, the agents made these statements with the
intent to compel Delaney to testify, but they were not false. The agents did
not inform Delaney that he did not have to accept responsibility at that time
to receive the sentence reduction, but the absence of this information does not
render the statements illusory. Without more, these statements were permissible
promises of possible leniency. Click here for the
complete opinion.

(Telling
the suspect he could help himself by telling the truth was not coercive)

In Renteria v. Curry (2011)
the US District Court, E.D. California, upheld the trial court's admission of
the defendant's incriminating statements. From the District Court's opinion:

At the hearing on the motions, the prosecutor played, and the court reporter
transcribed, a tape recording of that interview. Representative of the
statements he characterizes as improper promises of leniency are a detective's
comments that he could help himself by telling the truth and being
"totally forthright" because it would "really look bad to the
jury if the evidence doesn't match what you're telling us," that
"it's going to go a lot better for you" if he were to cooperate, and
that "[w]e can't help you unless you're honest." Representative of
the statements he characterizes as improper threats of the death penalty are a
detective's comments that "you need to help yourself right now because if
you don't you're probably going down forever and you'll probably never see
daylight again," that "the death penalty's not totally out of the
question," and that "you're looking at a possible death sentence
here." The record of the end of the interview shows that as a detective
asked him to be "honest with us and tell us the truth" [Petitioner]
interrupted him and said, "I want to talk to a lawyer." The detective
replied, "I can't help you," and asked no other questions.

The court reject the defendant's claim that his confession was coerced by
threats and promises, saying that "although Petitioner argues that the
questioning was coercive, Petitioner presents no evidence that coercion led to
Petitioner's statements or that Petitioner's will was overborne."Click here for the
complete decision.

(References to religion during an interrogation
do not result in a coerced confession)

In Reeves v. State (2011) the
District Court of Appeal, Florida, Fourth District found that "we agree
with the trial court's reasoning that the detectives' use of religion to
encourage the defendant to tell the truth did not make the defendant's
statements coerced. The trial court's parenthetical descriptions of Walker,
Smithers, and McNamee are accurate. In each of those cases, the supreme court
and this court considered various religious references in the context of the
totality of the circumstances and found that the confessions in those cases
were voluntarily given and not coerced. Similarly in this case, the detectives
merely played off the defendant's initial religious expressions of "God as
my witness" and "The Lord's more powerful than anybody on this
earth" to encourage him to tell the truth. "Encouraging or requesting
a person to tell the truth does not result in an involuntary
confession."Click here for the
complete decision.

(Reference to "God forgiving the suspect" did not
render the confession involuntary)

In Harden v. State (2011) the Supreme Court of Mississippi
upheld the lower court's decision to find the defendant's confession voluntary.
In their opinion the Supreme Court relates the following:

"In
the audiotaped confession, Harden repeatedly denied that anything had happened
with L.Q., before he finally confessed. Detective Zacharias told Harden that he
was aware Harden was under a lot of pressure; Harden cried and stated that he
might as well be dead. Detective Zacharias told Harden that as humans "we all
make mistakes," have "weaknesses" and "at some point we all as men [must be]
willing to step up to the plate and accept responsibility." The following
exchange occurred:

Q: Do
you believe in God?

A:
Yeah, I believe in God.

Q:
Okay, do you believe God forgives all?

A:
Yeah, He forgives all.

Q: He
does forgive all, doesn't He? No matter what your sins are, he forgives you
doesn't He? But do you not also have to accept responsibility, as hard as it is
for you right now? As a man, you need to step forward and accept forgiveness.
But that forgiveness is not given easily. You have to meet half-way don't you?
Right? And the only way is for you to accept responsibility, for you to admit
your weakness ...

The
trial court found that Harden's statement was voluntary. The trial court noted
Detective Zacharias's testimony that Harden had been emotional, that he had
understood what was being asked, and that he had understood his rights. The
trial court held that the statements regarding religion did not amount to
coercion. The court found that there was nothing to indicate Harden did not
understand what was going on, that he had a particular susceptibility to
religious matters, or that he was overcome due to a lack of mental
capacity."Click here for the complete decision.

(Court upholds confession after suspect told he
has two choices – cooperate and we will talk to the DA; don't cooperate
and we will not talk to the DA)

In
US
v. Siler (2011), the U.S. District Court, E.D. Tennessee, agrees with
the magistrate's decision when she found that during the interrogation of the
defendant Investigator Ogle presented the defendant with two choices, either
(1) cooperate, be charged with two burglaries, and the investigator would speak
with the DA and the probation officer about the defendant's cooperation, or (2)
not cooperate, potentially be charged with a "bunch of charges," and the
investigator would not speak with the DA and the probation officer. The
magistrate judge also found that one of the investigator's statements, taken in
isolation, could constitute a promise of leniency, coupled with a threat of
imprisonment. However, when the magistrate judge viewed that statement in the
context of the entire interview and the whole of the investigator's conduct,
the magistrate judge determined that it was not objectively coercive because
the investigator repeatedly told the defendant he could not promise him
anything except that he would go to the DA.

The defendant, on the other hand, asserts
that he was presented with the following choices, either: (1) cooperate, not be
charged with the burglary charges or a gun charge, and the investigator would
speak with the DA and the probation officer about the defendant's cooperation,
or (2) not cooperate, be charged with the burglary charges and a gun charge,
and the investigator would not speak with the DA and the probation officer. The
defendant also asserts that he made the inculpatory statements only after the
investigator assured him he would not be charged.

In
sum, the Court agrees with Magistrate Judge Shirley that the investigator
promised the defendant that if he cooperated, the investigator would speak with
the DA and the probation officer and, contingent upon the decisions of the DA
and the probation officer, the defendant could receive drug rehabilitation and
probation. The Court agrees with Magistrate Judge Shirley that, when the
context of both interviews are considered, along with the whole of the
investigator's conduct, Investigator Ogle did not threaten the defendant with
immediate imprisonment versus promises of leniency dependent on the defendant's
cooperation. Accordingly, because the investigator's promises of leniency were
not illusory, did not threaten immediate imprisonment, and because the
investigator did not promise the defendant that no charges would be brought
against him if he cooperated, the Court agrees with the magistrate judge that
the investigator's statements and/or promises of leniency regarding the
burglary charges, drug rehabilitation, and probation were not objectively
coercive." Click here for the
complete decision.

(Telling a suspect that he is lying is not
coercive)
In Revis v. State (2011) the
Court of Criminal Appeals of Alabama upheld the admissibility of the
defendant's confession, even though the defendant had claimed that his
statements were the result of coercive techniques, including the fact that the
police told him he was lying to them during the interrogation.

In addressing this issue the Appeals Court points out several cases that
rejected the suggestion that telling a suspect he is lying is a coercive
tactic:

"Moreover, any statements that the investigators made indicating that
Revis was lying or accusing him of lying did not cross the boundaries of
impropriety by becoming threats. See United States v.. Artis, [No.
5:10-cr-15-01, September 16, 2010] ___ F.Supp.2d ___, ___
(D.Vt.2010)("[T]he only evidence that weighs in favor of a finding of
involuntariness is the fact that three law enforcement officers questioned Mr.
Artis, confronting him with evidence of his guilt and accusing him of lying
after telling him that lying to them would be a crime. This evidence supports a
conclusion that the law enforcement officers were confrontational, but it does
not support a conclusion that they were coercive. See Parsad[v. Greiner],
337 F.3d[175] at 185 [ (2d Cir.2003) ] ('all custodial interrogations inherently
involve pressure, and officers routinely confront suspects with incriminating
evidence.')." See also State v. Owen, 202 Wis.2d 620, 642, 551
N.W.2d 50, 59 (1996)(the court found that Owen's claim that his statement was
involuntary because of improper police tactics such as "good cop/bad
cop" and confrontational questioning was without merit and stated,
"The adoption of roles by the investigators and [the investigator's]
accusation that Owen was lying and that he was responsible for [the victim's]
death are not improper police procedures. Further, the fact that the
investigator raised his voice and invaded Owen's space by getting close to him
does not establish actual coercion."). See also Estrada v. State,
313 S.w.3d 274 (Tex.Crim.App.2010)(statement by Estrada, a youth pastor, to
police in which he admitted impregnating and murdering a member of his youth
group was not coerced and involuntary despite the use of the following
interrogation techniques: accusing him of impregnating and murdering the victim,
falsely telling his girlfriend that he had admitted to their allegations and
then allowing the girlfriend to meet with him, telling him he was the central
figure in the investigation, and accusing him of lying)."Click here for the
complete decision.

(Court rules that exhorting the defendant to
be truthful so that "his sins would be forgiven" was not coercive)
In State v. Phillips (2010)
the Missouri Court of Appeals, Southern District, upheld the admissibility of a
confession after a four and one half hour interrogation, stating, in part, that
"Missouri courts have found confessions to be voluntary which resulted
from interrogations that lasted as long as or longer than Defendant's. See State
v. Smith, 735 S.W.2d 65, 68 (Mo.App.1987) (holding defendant's confession
to be voluntary when it came after six and a half hours in custody with
intermittent interrogation); State v. Simpson, 606 S.W.2d 514, 517
(Mo.App.1980) (holding that continuous questioning for four hours is not
coercive)."
In this case, the defendant, objected to "Detective Hope's exhortation
that he be honest so that God would forgive him of his sins. While the cynic
may question the sincerity of the Detective's spiritual advice, these remarks
clearly did not represent promises of worldly benefit, nor did they suggest
that by confessing Defendant would be able to escape punishment or incur a
lesser one.... An appeal to a suspect's religious beliefs does not render his
confession involuntary unless other circumstances indicate that his will was
overborne, and Defendant in this case has put forth no such
evidence."Click here for the
complete decision.

("[T]here is nothing inherently wrong
with efforts to create a favorable climate for confession.")
In US v. Sanchez (2010) the
US Court of Appeals, Eighth Circuit, overruled the trial court's decision to
grant the defendant's motion to suppress incriminating statements.
The trial court had found that "the officers were angry and intimidating
toward Sanchez, got close to Sanchez's face, yelled and badgered Sanchez, told
Sanchez that he was "going to jail," and threatened Sanchez with
charges of attempted murder and assault with a deadly weapon.... Additionally,
the magistrate judge concluded that the officers' "threat of possible
violent retaliation" by the victim's brother-who had a reputation for
violence-was "particularly coercive in light of the fact Officer Rave knew
Sanchez had younger sisters." .... Also, he found that the officers' showing
Sanchez a picture of the victim's injuries "may have been a significant
factor in overbearing the will of Sanchez, given his level of immaturity, low
tolerance for resisting others' influence, and seeing his mother emotionally
upset after viewing the graphic photograph of [the victim's] injuries."

The Court of Appeals reversed, finding that "Obviously,
interrogation of a suspect will involve some pressure because its purpose is to
elicit a confession. In order to obtain the desired result, interrogators use a
laundry list of tactics. Numerous cases have held that questioning tactics such
as a raised voice, deception, or a sympathetic attitude on the part of the
interrogator will not render a confession involuntary unless the overall impact
of the interrogation caused the defendant's will to be overborne.Astello, 241 F.3d at 967 (internal
quotations and citations omitted). "[T]here is nothing inherently wrong
with efforts to create a favorable climate for confession." United
States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir.2002) (internal quotations
and citation omitted)."Click here for the
complete decision.

(Suggesting defendant would receive counseling
and lenient treatment if he admitted to the sex offenses did not invalidate the
confession)

In State
v. Douglas, (2009) the Court of Appeals of Ohio, Tenth District, upheld
the admissibility of the defendant's confession. In this case the
"Appellant argues that Phillips rendered his confession involuntary by
suggesting that he would receive counseling and lenient treatment if he
admitted to the sex offenses. Assurances that a defendant's cooperation will be
considered or that a confession will be helpful do not invalidate a confession,
however."

"Appellant argues that his low intelligence and learning disability
rendered his confession involuntary. The record does not establish that
appellant's mental condition led to an involuntary confession. Although the
psychologist who evaluated appellant recognized that appellant has difficulty
with complex information and that his "passive, compliant style" may
prevent him from seeking needed assistance, he also concluded that appellant
has the "capability to understand concepts and principles" and "make
a decision that is likely to be in his best interest." (Defense Exhibit
A.) Furthermore, the psychologist concluded that appellant is neither mentally
ill nor mentally disabled.

"In addition, the totality of the circumstances establishes that
appellant's will was not overborne and his capacity for self-determination was
not critically impaired when he spoke with Phillips. ..... Appellant's
videotaped confession shows that he comprehended Phillips' questions and was
able to express his thoughts and recall his actions in a rational manner.
Lastly, appellant was not new to the police interview process; Phillips had
previously interviewed appellant on a different matter."Click here for the
complete decision.

(Court rejects claim that officers created an
environment that caused defendant's will to be overborne)

In State v. Goodwin, the
South Carolina Court of Appeals upheld the defendant's confession as voluntary.
Goodwin maintained that the trial court abused its discretion by admitting his
statements into evidence when the officers created an environment that caused
his will to be overborne.

Here, Goodwin maintains his will was overborne by the culmination of police
tactics used during his interrogation. Specifically, he cites the officers'
lying about evidence, threatening inappropriate and unjustifiable police action
against his family members, strongly suggesting they could influence the
State's decision to seek the death penalty, and numerous emotional appeals
relating to his family.

When considering the Withrow factors to determine the voluntariness of
Goodwin's statement, we find the trial court properly admitted Goodwin's
statements. Goodwin evidenced his knowledge of the judicial system in the audio
taped interview when he initiated a conversation about his probable sentence.
The initial interrogation lasted seventy minutes, and Goodwin was offered food,
drink, and the opportunity to use the facilities. Moreover, the first four
statements were at the police station, in an interview room and in the
officers' offices. The fifth interview was at the jail, and the sixth was
during an excursion from jail. Furthermore, the questioning was at the most a
continuous seventy minutes, and while there were six individual statements, all
occurred within a three-day period. Click here for the
complete decision.

(Telling
the suspect that the prosecutor will be advised of their cooperation does not
constitute a promise of leniency)

In People v. Carrington, (2009)
the Supreme Court of California upheld the confession that the defendant killed
three people and examined each interrogation to assess the defendant's claims
that she confessed due to promises of leniency.

In their opinion the Supreme court stated that the "Defendant also
contends that Detective Lindsay's assurances that the police merely were
attempting to understand defendant's motivation in committing the crimes
impermissibly coerced her to confess. To the contrary, Detective Lindsay's
suggestions that the Gleason homicide might have been an accident, a
self-defensive reaction, or the product of fear, were not coercive; they merely
suggested possible explanations of the events and offered defendant an
opportunity to provide the details of the crime. This tactic is
permissible."

They also stated that "The statements made by the officers did not imply
that by cooperating and relating what actually happened, defendant might not be
charged with, prosecuted for, or convicted of the murder of Esparza. The
interviewing officers did not suggest they could influence the decisions of the
district attorney, but simply informed defendant that full cooperation might be
beneficial in an unspecified way. Indeed, defendant understood that punishment
decisions were not within the control of the police officers. As noted above,
she said it "just depends on the judge and DA and how are they going to
prosecute it." Under these circumstances, Detective Sherman's statement
that he would inform the district attorney that defendant fully cooperated with
the police investigation did not constitute a promise of leniency and should
not be viewed as a motivating factor in defendant's decision to confess." Click here for the
complete decision.

("You're
digging a hole you're not gonna be able to get out of." "This is the
one percent of the time, I tell you, if you keep quiet they're gonna hammer
you." Discussion of what constitutes a threat)
In State v. Evans (2009) the
Supreme Court of New Mexico examined the defendant's claim that his September
18, 2005 statement to police, admitting culpability in the victim's death,
should have been suppressed because the police used coercive tactics which
rendered his statement involuntary. Specifically he claimed that the following
statements made by the interrogator were coercive:

"You're digging a hole you're not gonna be able to get out of."
"This is the one percent of the time, I tell you, if you keep quiet
they're gonna hammer you."

"[I]f you leave it like it is, you're through...."

Defendant's interrogator made this statement after Defendant denied involvement
in the killing:

"Just because you don't wanna be a rat, you're gonna be treated as a
monster in court and you're never gonna get out of prison."

The Supreme Court then discussed what constitutes a threat:

"The critical difference in the case law between impermissibly coercive
threats and threats which do not cross the line is in how credible and
immediate the accused perceives the threat to be. Threats which the accused may
perceive as real have been held to be impermissibly coercive. (holding that
where defendant-inmate had a below-average IQ and had already received
"rough treatment" by other inmates and was a convicted child
murderer, a promise to protect him from further physical violence if he
confessed amounted to a "credible threat" of physical violence). On
the other hand, threats that merely highlight potential real consequences, or
are "adjurations to tell the truth," are not characterized as
impermissibly coercive. (holding that police threat to the defendant that the
court would "hang [your] ass" if the defendant did not confess, a
comment which was disputed by the State, did not render confession
involuntary). It is not per se coercive for police to truthfully inform an
accused about the potential consequences of his alleged actions.

Three of the four statements at issue here could be taken as threats: (1)
"they're gonna hammer you"; (2) "you're through"; and (3)
"you're gonna be treated like a monster in court and you're never gonna
get out of prison." All of these statements lie between the two poles
described above-the statements are more than adjurations to tell the truth, but
less than credible threats of violence. "You're never gonna get out of
prison" can reasonably be taken to refer to a potential life sentence-well
within reality for a first-degree murder conviction, which is at issue in this
case. "You're gonna be treated like a monster in court" appears to be
a reference to the way those in court might perceive Defendant. The comment may
be a stretch or an exaggeration, but it is not out of the realm of a real
possibility. Agent Ness never specified what he meant by "you're
through," or who he was referring to as "they" in "they're
gonna hammer you." Both statements, taken in isolation, could be taken as
a threat of physical violence. However, taken in context with the entire
interrogation, where Agent Ness repeatedly communicated to Defendant that he
was not interested in vengeance, and certainly not in physical vengeance, the
statements-vague though they are-cannot credibly be taken to threaten Defendant
with physical violence.

Our case law makes clear that deception is not coercive per se. (
"[D]eception, in itself, is not a basis for ruling, as a matter of law,
that a confession should be suppressed."). The degree of deception is but
one factor to consider in deciding whether a confession was given contrary to
the accused's free will. Considering the deception as one factor in our
analysis, we must also consider Defendant's probable reaction to those
statements. At the time of the confession, Defendant was a 30-year-old man who,
in the district court's words, was "in full control of his
faculties," and who had prior exposure to the criminal justice system.
Agent Ness made veiled and somewhat ambiguous threats to Defendant, but unlike
the "mentally dull" teenage defendant in Payne v. Arkansas, or
an illiterate defendant with mental retardation, as in Culombe. Defendant had
an adult capacity to sort exaggerated tough talk from real threats. There is
certainly a point at which police threats, promises, or deception, would cross
the line into coercion, but that line has not been crossed here." Click here for the complete
decision.

(Court
rejects claim of threatening statements)

In State
v. Neal (2009) the Court of Appeals of Arizona upheld the trial court's
decision to admit the defendant's confession. The defendant claimed that he
confessed as a result of threatening statements made to him during the
interrogation. The court found that:

"Here, the statements made by police to which Defendant's counsel objected
included, "Before you go down the path of not being able to set things
straight and us going to the prosecutor and saying hey, [']he wants to beat
around the bush and all this craziness,['] then you are looking at other
things," "When this story comes out, ultimately, who will you be
insulting is the person who [,] who reviewing the case-who is the
prosecutor" and "If Jarvis didn't tell us everything, then that is
something we are going to have to report."
Tempe Police Department Detective Trent L. (Detective L.) testified that such
statements were designed to communicate that "[ t] he prosecutor was going
to indeed review the case, and that the evidence as it sat" did not
include Defendant's version "as to what happened inside the store that
evening." Defendant testified he believed that if he did not confess,
"the punishment was going to be harsher." The trial court and this
court reviewed a recording of the interrogation and concluded that "there
was no conduct on the part of the police that served to overcome the
defendant's will or there were no promises, no threats, no coercions, no
force." Click
here for the complete decision.

In State v. Parker, the Court of
Appeals of South Carolina stated that "Few criminals feel impelled to
confess to the police purely of their own accord without any questioning at
all.... Thus, it can almost always be said that the interrogation caused the
confession.... It is generally recognized that the police may use some
psychological tactics in eliciting a statement from a suspect.... These ploys
may play a part in the suspect's decision to confess, but so long as that
decision is a product of the suspect's own balancing of competing
considerations, the confession is voluntary."

"Excessive friendliness on the part of an interrogator can be deceptive.
In some instances, in combination with other tactics, it might create an
atmosphere in which a suspect forgets that his questioner is in an
adversarial role, and thereby prompt admissions that the suspect would
ordinarily only make to a friend, not to the police." Miller v. Fenton,
796 F.2d at 604 (3d Cir.1986), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93
L.Ed.2d 587 (1986). "Nevertheless, the 'good guy' approach is recognized
as a permissible interrogation tactic." Id. (holding confession
admissible despite interrogating officer's "supportive, encouraging
manner ... aimed at winning [appellant's] trust and making him feel
comfortable about confessing."). See also Beckwith v. United States, 425
U.S. 341, 343, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (interrogator had
sympathetic attitude but confession voluntary); Frazier v. Cupp, 394 U.S.
731, 737-38, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (confession voluntary when
petitioner began confessing after the officer "sympathetically suggested
that the victim had started a fight.")." Click here for the complete
decision.

(No
quid pro quo bargain)

In Harris
v. State (2008)"Harris claims that his admissions were obtained through police
trickery, and the detectives
"delude[d]" him by minimizing the dangers of admitting to the assault
and robbery and threatening to prosecute for first-degree premeditated murder
on the basis of statements allegedly made by other defendants." The
Court of Appeals found that "the detectives did not make promises or
threats that coerced Harris into confessing. Rather, they made general
statements, such as, that a witness had identified Harris and that Harris faced
significant jail time. They did not offer a quid pro quo bargain for a
confession. See Philmore v. State, 820 So.2d 919, 928 (Fla.2002) (finding that
statements suggesting leniency in interview are objectionable only if they amount
to express quid pro quo deal). Nor did the detectives indicate that murder
resulting from a robbery is any less serious than intentional murder. They only
inquired as to whether the boy had planned a robbery, as opposed to having
grabbed the victim off the bike to intentionally beat him to death." Click here for the
complete opinion.

In US
v. Freeman (2008) the Defendant claimed that his will was overborne by
a number of factors, including the interrogators' use of the following lies,
threats, and promises. "Over the course of the interview, SA Bogle
suggested to the accused that everyone makes mistakes and the best thing to do
is admit it and get it behind you. He
promised the accused that if he cooperated, they could tell his commander about
it and it might help. On the other hand, he told the accused, if you don't tell
the truth, the case will go downtown and with a civilian victim you could get
five years in jail. When the accused denied being out that night, SA
Bogle lied to him and told him a witness saw him out. He also told the accused
that his fingerprints were found at the scene." The Court found that
"Viewing all the facts taken together, we agree with the Court of Criminal
Appeals that they were not "so inherently coercive as to overcome the
appellant's will to resist." Click here for the
complete opinion.

(Statements
that he had some "serious
problems" and needed to do the right thing and help himself out by talking
to them, and that he was facing "serious time," fall within
the permissible bounds of psychological persuasion)

In US v. Zavala(2008)the court stated that,
although it is possible to find involuntariness based on psychological
coercion, "it is generally recognized that the police may use some
psychological tactics in eliciting a statement from a suspect." The
question to be answered when such tactics are used is whether they 'were so
manipulative or coercive that they deprived [the suspect] of his ability to
make an unconstrained, autonomous decision to confess.' However, an
investigator may "play on the suspect's sympathies or explain that honesty
might be the best policy for a criminal who hopes for leniency from the
state."

The statements that the interrogator made that he had some "serious problems" and needed to do the right thing
and help himself out by talking to them, and that he was facing "serious
time," (Tr. 5/12/08 13, 20),-fall within the permissible bounds of
psychological persuasion. These statements, informing petitioner of the
possible repercussions of conviction, were not "so manipulative and
coercive that they deprived [petitioner] of his ability to make an
unconstrained, autonomous decision to confess." The Court concluded that
the defendant was properly Mirandized and was not coerced into giving a
confession in violation of his Fifth Amendment rights. Click here for the
complete opinion.

False
imprisonment – why it is important for the investigator not to block the
employee's access to the interview room door

(Continued
exhortations to tell the truth and references to religious beliefs do not
render a confession inadmissible)

In State v.
Blank (2007) the Supreme Court of Louisiana relied on the videotape
of the interrogation to uphold the admissibility of a confession the
defendant claimed was coerced as a result of the interrogators references to
the defendant's deceased mother, appeals to his emotions and religious
beliefs, as well as repeated exhortations to tell the truth. The court stated
the following:

While
defendant's factual allegations are accurate, he does not show that any of
the state's conduct coerced his admissions or rendered the confession
involuntary. Our review of the videotapes and the verbatim transcript does
not show the officers exercising any type of coercion which would at all
indicate that this confession was involuntary. To the contrary, the vast
majority of the interview was extremely benign on the part of the officers
and Blank was treated very well throughout. In response to defendant's
specific examples of coercive conduct, it is evident from the record that
defendant did not request food during the interview, during which, notably,
none of the interrogators stopped to eat a meal. Despite intermittent
statements expressing fatigue and or physical discomfort, defendant never
requested to terminate the interview. Moreover, for the most part, officers
accommodated defendant when possible, providing him drinks, allowing him to
use the restroom and heating the interrogation room. While at first the
officers denied defendant's request to smoke, after he smoked a cigarette
while he was alone in the bathroom, they continued to let him smoke, and he
was allowed to smoke before he confessed to any crimes.

As to the
references to defendant's deceased mother, appeals to a defendant's emotions
and/or religious beliefs typically do not render an ensuing confession
involuntary. Defendant also claims that the officers' relentless exhortations
that he tell the truth in conjunction with false suggestions indicating that
they possessed forensic evidence of his guilt, illegally coerced the
confession. Defendant claims that during the interrogation, officers used the
word "truth" no less than 30 times, including several
communications in which they urged that he answer their questions truthfully.
Courts have routinely held that a mild exhortation to tell the truth, or a
remark that if the defendant cooperates the officer will "do what he
can" or "things will go easier," will not negate the voluntary
nature of a confession.

(Offer to work with police in
exchange for favorable recommendation to prosecutor upheld)

In State v. Moore (2007) the
Washington Court of Appeals ruled that:

"Here,
the trial court found that the offer to Moore (to work with the police in
exchange for a favorable recommendation to the prosecutor) was made post-
Miranda, but not necessarily before or after the confession (which was also
post- Miranda). A mere promise of leniency, without more, is not enough to
invalidate a confession. State v. Riley, 19 Wn. App 289, 297-98, 576 P.2d
1311 (1978). At best, all that was promised here was a recommendation of
leniency, which was offered in exchange for informant work, not for the
confession. Because no evidence of coercion for a confession is in the
record, the findings of fact support the conclusion that the offer did not
invalidate Moore's confession.Click here for the complete
decision.

(US
District Courts upholds admissibility of incriminating statements even though
subterfuge was used as to the purpose of the interview)

In US v Rosen (2007) the US District
Court, E.D. Virginia found that the incriminating statements made by the
defendants were admissible even though the investigators misrepresented the
reason for the interview and even indicated at one point that the
interviews did not relate to a criminal investigation. In their
decision the court stated, "No Supreme Court or Fourth Circuit decision
has ever suppressed a defendant's statements on the sole ground that false
statements by law enforcement officers to the defendant rendered the statement
involuntary. At most, courts consider police deception or trickery as one
factor to consider in a totality of circumstances assessment of voluntariness."Click here for the complete case.

(What constitutes a promise
of leniency?)

In U.S. v Kasey (2007) the US District
Court D. Arizona examined the issue of what statements constitute a promise of
leniency that would render a confession inadmissible. They found that such
statements as:

"You can help yourself out by telling the truth."

"[T]his is probably going to be a 50-year-to-life-type count. You know you
need to mitigate, try to help yourself out...."

"And they'll give the benefit for standing up. Because that's the way the
Federal system works for cooperation with the Government. That's the way it
works. You get the benefits for doing that. It shows a truthfulness. Whether
the truth hurts, you get a benefit for the truth, and the truth can hurt. It's
not fun talking about this kind of stuff."

"You just need to make a decision if you want to do something like that to
explain to the world why this went down. But it's up to you. I mean, this is to
help you. It's not going to help me, I don't need the help."

"They're young like you are. They are trying to do whatever they can to
rectify a bad situation and make it in their best interest, and I would do the
same thing".

"There's just a huge amount of evidence and when we work with the Apache
Detectives and us, that's the kind of cases we put together. And they're very
thorough, very solid. So you're young, you need to do something that's going to
help you out."

The court stated, "A promise only vitiates consent if it is
"sufficiently compelling to overbear the suspect's will in light of all
attendant circumstances."... Reciting possible penalties or sentences does
not render a statement involuntary.

Here, the agents told Defendant that she could help herself by telling her
version of the events. There is nothing in the interview transcript to indicate
that the agents said or did anything to overbear Defendant's will. Merely
stating that Defendant should "help herself by telling her story" is
not sufficiently compelling to overbearing her will by offers of leniency.
Furthermore, Defendant states that she confessed to prevent others, who had
nothing to do with the murders, from being charged. At no point in the
interview did Defendant indicate that she confessed because the agents promised
leniency or that her confession was in exchange for a lighter sentence. Nor do
the agents state that they are offering Defendant a lesser sentence in exchange
for her confession. Finally, the agents' recital of possible prison sentences
does not render Defendant's statement involuntary."Click here for the
complete decision

(California
Supreme Court upholds the use of deception)

In People v. Smith (2007) the
interrogating officers administered to the defendant a "Neutron Proton
Negligence Intelligence Test" that pruportedly showed that the defendant
had recently fired a gun. On appeal the defendant claimed that this was a
coercive tactic. In the California Supreme Court's opinion they stated,
"Police deception "does not necessarily invalidate an incriminating
statement." ( People v. Maury (2003) 30 Cal.4th 342, 411, 133
Cal.Rptr.2d 561, 68 P.3d 1.) Courts have repeatedly found proper
interrogation tactics far more intimidating and deceptive than those employed
in this case. (See, e.g., Frazier v. Cupp (1969) 394 U.S. 731, 739, 89 S.Ct.
1420, 22 L.Ed.2d 684 [officer falsely told the suspect his accomplice had
been captured and confessed]; People v. Jones (1998) 17 Cal.4th 279, 299, 70
Cal.Rptr.2d 793, 949 P.2d 890 [officer implied he could prove more than he
actually could]; People v. Thompson (1990) 50 Cal.3d 134, 167, 266 Cal.Rptr.
309, 785 P.2d 857 [officers repeatedly lied, insisting they had evidence
linking the suspect to a homicide]; In re Walker (1974) 10 Cal.3d 764, 777,
112 Cal.Rptr. 177, 518 P.2d 1129 [wounded suspect told he might die before he
reached the hospital, so he should talk while he still had the chance];
People v. Watkins (1970) 6 Cal.App.3d 119, 124-125, 85 Cal.Rptr. 621 [officer
told suspect his fingerprints had been found on the getaway car, although no
prints had been obtained]; and Amaya-Ruiz v. Stewart (9th Cir.1997) 121 F.3d
486, 495 [suspect falsely told he had been identified by an eyewitness].)
Indeed, at least one Court of Appeal has approved of the particular practice
used in this case. ( People v. Parrison (1992) 137 Cal.App.3d 529, 537, 187
Cal.Rptr. 123 [police falsely told suspect a gun residue test produced a
positive result].)

After examining the circumstances surrounding the "Neutron Proton
Negligence Intelligence Test," it does not appear that the tactic was so
coercive that it tended to produce a statement that was involuntary or
unreliable.Click here for
the complete decision.

(Court outlines acceptable
interrogator behavior)

In reaching their decision to deny the motion to suppress
the defendant's confession in the case US v Jourdain (2007) the court
outlines acceptable interrogator behavior. In their decision they state,
"As our Court of Appeals has recognized:

To state the obvious, "interrogation of a suspect will involve some pressure
because its purpose is to elicit a confession." [ United States v. Astello, 241
F.3d 965, 967 (8th Cir.2001), cert. denied, 533 U.S. 962 (2001) ]. "[T]he fact
that the tactics produced the intended result * * * does not make a confession
involuntary." Id. at 968. In other words, 'there is nothing inherently wrong
with efforts to create a favorable climate for confession." United States v.
LeBrun, 306 F.3d 545, 555 (8th Cir.2002)(internal citations omitted. "
'[Q]uestioning tactics such as a raised voice, deception, or a sympathetic
attitude will not render a confession involuntary unless the overall impact of
the interrogation caused the defendant's will to be overborne.' " Astello, 241
F.3d at 967 (quoting Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.1993)). Nor
will a promise of leniency, an "expressed disbelief in the statements of a
suspect * * *, or lie[s] to the accused about the evidence against him"
necessarily render a confession involuntary. Wilson v. Lawrence County, 260
F.3d 946, 953 (8th Cir.2001) (internal citations omitted). Rather, the coercive
conduct must be "such that the defendant's will was overborne and his capacity
for self determination critically impaired." Astello, 241 F.3d at 967 (internal
citations omitted).

As was true with Kelly's statements in Graves' vehicle, we find no responsible
basis upon which to conclude that the Defendant's will was overborne by the
questioning techniques that were employed by Peterson, or because of any of
Kelly's individual characteristics."Click
here for the complete case

(Suggesting
to the defendant that the stabbing death was self-defense does not render the
confession involuntary)

In Fundaro v Curtin (January
2015) the US District Court, E.D. Michigan, denied the defendant's claim that
his confession should have been found to be involuntary because the police
suggested that the stabbing was self-defense. From the court's opinion:

"Petitioner's sole claim is that the statements he made to police after
his arrest were involuntary and should have been suppressed because the
interrogating officers misrepresented the consequences of admitting to the
homicide. He claims that the officers told him that his conduct constituted
self defense and therefore he did not have anything to worry about by
cooperating. The trial court held an evidentiary hearing on the claim in which
the officers in question and Petitioner testified. After the hearing, the trial
court issued an opinion finding that Petitioner's confession was voluntary and
a product of his own free will. The Michigan Court of Appeals upheld this
decision. Respondent argues that the state court adjudication of Petitioner's
claim reasonably applied the established Supreme Court standard, and therefore
habeas relief is not warranted.

The test for the voluntariness of a statement to the police is whether the
confession [is] the product of an essentially free and unconstrained choice by
its maker[.] If it is, if [the suspect] has willed to confess, it may be used
against him. If it is not, if his will has been overborne and his capacity for
self-determination critically impaired, the use of his confession offends due
process.

Here, the evidence presented at the pretrial hearing indicted that Petitioner
was informed of and waived his Miranda rights. Petitioner did not
contest that he told the officers that he was willing to talk to them after he
was read his rights, and he did not claim that he invoked his right to cut-off
questioning during the interview. Petitioner was familiar with the criminal
justice system and police questioning, having been involved with investigations
from 2007-2009.

The officers participating in the interview denied that they made any threats
or promises to Petitioner in exchange for his cooperation. Petitioner appeared
to the officers to be coherent, understood what was happening, and answered
questions logically. During the initial interview by Sergeants Troy and
Wittebort, which lasted from 7:45 p.m. until 9:00 p.m., Petitioner denied any
involvement at all in the death of the victim. The officers suggested that
perhaps the victim attacked him because a hammer was found near his harm.

Mistretta told Petitioner that he did know anything about the facts of the
homicide. He explained that he was telling Petitioner that he should cooperate
because if he didn't, then the officers would not hear his side of the story
and consider that Petitioner may have acted in self-defense. Petitioner then
claimed that the shop owner came at him with a hammer so he stabbed him in
self-defense.

The record supports that state court's decision that Petitioner's statement to
the police was voluntary. "Ploys to mislead a suspect or lull him into a
false sense of security that do not rise to the level of compulsion or coercion
to speak are not within Miranda's concerns." So while it is true
that a promise of leniency can render a confession coerced depending on the
totality of the circumstances, ... here there was no promise of leniency made
to Petitioner. The officers merely informed defendant that if what he did was
self-defense then it was in his best interests to say so. While Petitioner testified
that he understood the officers to be saying that he did nothing wrong, their
testimony shows that they made no such representation. Rather, the statements
were conditional: if Petitioner acted in self-defense, then he
should explain his side of the story. The statements did not inform him that he
in fact acted in self-defense. In light of this, Petitioner's choice to give
his version of events was reasonably construed by the state courts to be the
product of an essentially free and unconstrained choice by Petitioner. Schneckloth,
supra. The police did not promise Petitioner that his story would exonerate
him, only that the interview was his opportunity to share it. The state court
decision that Petitioner's statement was voluntary therefore did not constitute
an unreasonable application of the established Supreme Court standard.

(Georgia
Supreme Court rejects the idea that a suggestion that the shooting was an
accident constitutes a hope of leniency)

In Smith v. State (June 2014) the
Supreme Court of Georgia held that statements by the police detectives during a
custodial interrogation to the effect that shooting the victim was an accident
in response to the victim lunging at the defendant did not constitute a
slightest hope of benefit that could render defendant's confession
inadmissible.From their opinion
the Supreme Court stated the following:

"At the time appellant made a statement to police, he was
under arrest for the Perez robbery and suspected of the two other crimes. He
was given his Miranda rights before the interrogation commenced and he
waived those rights. Within the first twenty minutes of the interrogation,
appellant admitted that he shot Justin Patel at the BP station. During the
discussion of the BP incident, the police told appellant that there was a
surveillance tape showing that the victim lunged at appellant before appellant
shot him. The police made statements to appellant to the effect that the
shooting was an "accident" in response to the victim lunging at appellant and
appellant eventually made inculpatory statements.... Appellant contends the trial court erred
in admitting the videotaped confession into evidence because he contends it was
induced by the slightest hope of benefit "as the hope of lighter punishment was
clearly implied by the [detective's] excusable accident theory," in violation
of the former OCGA S 24–3–50. We disagree. "A hope of benefit
generally arises from 'promises related to reduced criminal punishment—a
shorter sentence, lesser charges, or no charges at all.' [Cit.]" ... At no point
did detectives tell appellant that he would not be charged with murder, that he
would be charged with a crime less than murder, or that he would receive lesser
punishment if he confessed. In fact, appellant understood that he would be
incarcerated for his actions because he twice asked about obtaining a bond and
made statements to the effect that he knew he was going to jail. Under these
circumstances, there was no violation of OCGA S 24–3–50."

(Investigator's statement that felony
murder would receive a lesser sentence than premeditated murder did not render
confession involuntary)

In State v. Turner (May 2014) the Nebraska
Supreme Court held that misinformation by police officers during the
defendant's interview that felony murder would receive a lesser sentence than
premeditated murder did not overcome defendant's will so as to render his
confession involuntary based on purported promises of leniency. From the
court's opinion:

"Turner argues that his confession was involuntary because
it was induced by an implied promise that he would receive a lesser sentence if
he confessed that the shooting was accidental. As evidence of this implied
promise, he points to Ficenec's statements that it made "a big difference" how
and why the shooting occurred and to Krause's statement that the possible
penalty could be 1 to 10 years' imprisonment if the shooting was accidental. He
claims that these statements constituted an implied promise of leniency which
overcame his will and caused him to confess. He further argues that the
officers' statements were deceptive because first degree murder encompasses
felony murder—which does not require a showing of malice, intent, or
premeditation.

Turner is correct in his assertion that the officers
deceived him during the course of the interview at the parole office. Ficenec's
statements as to there being "a big difference" how and why the shooting
occurred, and specifically Krause's statement that Turner could get 1 to 10
years' imprisonment if the shooting was accidental, incorrectly indicated that
felony murder would receive a lesser sentence than premeditated murder...

... We have previously noted that a deceptive statement
regarding possible sentences is only one of several factors to be considered. In State v. Thomas, we determined that the defendant's confession was
voluntary and not caused by misinformation regarding possible sentences due to
the presence of three factors. These factors included that (1) the officers
returned to previous themes between the discussion of possible penalties and
the defendant's confession, (2) the defendant indicated a knowledge that he
could receive life imprisonment for the crime both before and after his
confession, and (3) the confession occurred after an officer indicated that he
did not know what sentence would be imposed.

... As in Thomas, Turner's confession did not
follow the discussion in which the officers misrepresented that a lesser
sentence would be imposed for felony murder. Rather, his confession was
immediately preceded by the officers' return to the prior theme of Turner not
being a bad, evil person; Krause's exhortation to "do the right thing"; and the
colloquy regarding Turner's belief in God and the fate of his soul. Thus, the dialog
immediately preceding Turner's confession supports the conclusion that his
confession was primarily motivated by remorse and a desire to do the right
thing—not to receive a lesser sentence.

As to the second factor we identified in Thomas, Turner indicated both before
and after his confession that he was aware he could receive a sentence of life
imprisonment. Before Turner confessed at the parole office, he stated, "Man,
I'm going to get life for this shit." And after he confessed and was
transferred to the police department, Turner stated to Coleman, "I'm about to
get like, life." Thus, this factor indicates that Turner did not believe his
confession precluded him from receiving life imprisonment.

Finally, like the
defendant in Thomas, Turner confessed after
officers stated that they did not know what sentence would be imposed. In
response to Turner's statement, "I'm going to get a hundred years," Ficenec
replied, "I can't tell you what the potential penalty could be. I mean I'm not
going to bullshit you. Could you potentially get life? Is that a possibility? I
mean, I'm not a judge, I'm not a prosecutor." And during the colloquy
immediately preceding Turner's confession, Krause stated, "I don't know, okay?"
in response to Turner's assertion that he "might be in jail for a long-ass
time." Thus, although they incorrectly indicated that felony murder would receive
a lesser sentence, the officers made no representations as to what sentence
Turner would receive if convicted. This factor supports the conclusion that
Turner's confession was not motivated by a belief that he would receive a
particular sentence.

(Accident versus intentional act was a "red
herring" but not coercive)

In Walker v. Davis (January
2014) the US District Court, E.D. California, upheld the lower courts finding
that the defendant's confession was not coerced by the investigators.

"Petitioner argues that the criminal justice system naivete of her client,
when juxtaposed with the skill and persistence the interrogators utilized in
questioning over a three day period, made for a due process violation, i.e., an
involuntary number of damaging admissions.

Defendant's argument centers on representations from the detectives during the
interviews on October 23 and 24. On October 23, Detective Tyndale informed
defendant that she failed the polygraph examination, and he was having a hard
time with whether she intentionally caused the child's death. He told her that
people would forgive a mistake, but if someone made a mistake and was not
honest about it, "people aren't as forgiving." He also said: "I
don't think you're someone who would intentionally kill a child.... [P] ... [P]
But if there was something that happened that was an accident, ... [P] ... [P]
that's what you need to tell me. 'Cause otherwise the detective[']s gonna think
you did do something on purpose."

Later, Detective Tyndale told defendant he would like to design a polygraph
test she could pass, and he would have to explain to Detective Jason why she
did not pass the polygraph. Detective Tyndale repeatedly asked defendant if the
child's death was an accident, and continued: "When you tell me what it
was, that's how I'm gonna design the polygraph test.... [P] ... [P] Because if
it's an accident, that's what people understand. Especially when you're sorry
for it. When you don't tell the truth, people don't believe you're sorry."

Detective Tyndale continued this line of questioning, assuring defendant he
believed the killing was accidental, and telling her: "if you tell me the
truth, I promise you're gonna pass the test. If it was an accident, I can show
that. But you gotta be honest with me about it." He repeatedly promised
defendant that if she told the truth, he would develop a test she could pass.
He also told defendant, "You know, what kind of person would kill a small
child on purpose? Are you that kind of person?"

Detective Tyndale then told defendant he knew she was "worried" and
"scared" as some day "12 people sitting in a jury" would be
looking at her, wondering whether she did it on purpose or it was an accident.
He reiterated that it would be important for him to "walk out of here and
be able to go up to Detective Jason and say, she's telling me the truth? She
did it, but she didn't do it on purpose. It was an accident." As the
interview wound down, he told defendant she took on more children than she
could handle, and "I can help you show that it was an accident." By
the end of the interview, defendant admitted she accidentally killed the child.

The Court of Appeal opinion, accurate as it is, nevertheless does not reflect
the persistency of the questioning. The first two days of the interviews by
Detective Jason were plodding, polite and persistent. Petitioner was asked
again and again to describe the circumstances which led to the infant's death.
The tireless questioning led to petitioner being caught in
inconsistencies/absurdities, e.g., she administered CPR at the time when she
found the infant dead in the middle of the night, and later, after she
"panicked," several hours later, when she repeated CPR on a known
lifeless body in the process of a conversation with a 911 dispatcher. After a
polygraph was administered on October 23, Detective Tyndale attempted to force
the issue. This interview on October 23, and that of detective Jason on October
24, 2007, was of a more aggressive character, although at all times, the
interrogation was civil. In the latter interviews, if the police detectives
told petitioner she was not telling the truth regarding the causation of the
death once, they told her 100 times. The detectives were not going to accept
any answer by petitioner that she did not take the actions which led to the
death. Similarly, the numerous statements to petitioner stressing the different
possible outcomes depending on whether "it was an accident" or
"purposeful," was a red herring in that Cal.Penal Code 273ab only
required purposeful actions of petitioner in causing injury, which resulted in
death. The prosecution would not have to prove that petitioner intended the
death of the infant by her actions. And, the police knew at the time that the
injuries to the infant were incompatible with an accident. Many times
petitioner was coaxed to be honest, and that the truth would make her feel
better. She was in fact told on occasion that she was being honest, but the
questioning continued with the clear indication that she was not. She was also
confronted numerous times with the alleged falsity of her polygraph exam, often
coupled with the "accident-purposeful" dichotomy, i.e., people would
understand if the death was an accident.

Moreover, petitioner's unsupported-in-degree by the record, "naivete"
assertion is not the same as the "critical" factor of Doody's juvenile
status, although the undersigned recognizes that Doody was almost an adult at
the time of his interrogation. Many persons who are interrogated by the police
are being questioned for the first time; these persons may not have developed a
skill set of "admission avoidance." But something more than
unfamiliarity with police techniques is necessary before persistent questioning
will be found to have overborne the will of the person being questioned. It
appears to the undersigned that petitioner believed she could talk her way out
of her problems; many people make that mistake as the interrogators are
politely weaving the web ever tighter on the person questioned. Good
interrogation technique should not be confused with undue pressure. As
recounted above, petitioner was permitted to go home after the first and second
day of questioning to recover and reflect on the day's interrogation.

In sum, the Court of Appeals' determination that petitioner's confession was
not involuntary cannot be termed unreasonable as that term is defined in AEDPA.

(Interrogator's reference to mitigating
circumstances, including the fact that the shooting may have been an "accident"
or from a "fit of rage" "fall far short of being promises of
lenient treatment in exchange for cooperation")

In People v. Carrillo-Garcia
(2012) the Court of Appeal, Third District, California rejected the defendant's
claim that his confession was coerced by the police through implied promises of
leniency and implied threats "that his failure to cooperate would work
against him." The trial court found the statements were voluntary and
denied the motion to suppress. From their opinion the Court of Appeal stated:

"Defendant, who maintains he was particularly susceptible to influence
because he was only 18 years old and naive about the criminal justice system,
contends the police coerced his confession with repeated promises of leniency.
Not so. As aptly pointed out by the Attorney General, two Supreme Court cases
with remarkably similar interrogations found the confessions were voluntary.

In People v. Holloway (2004) 33 Cal.4th 96, the interrogator suggested
that the killings might have been accidental or resulted from a fit of rage and
that these circumstances could " 'make[ ] a lot of difference.' " ...
Similarly, the sergeant here also suggested to defendant that mitigating
circumstances could "make[ ] a difference." Thus, he reinforced the
message that defendant might not have intended to kill, but that his emotions
got out of control. Here, as in Holloway, the interrogator's suggestions
"fall far short of being promises of lenient treatment in exchange for
cooperation. The detectives did not represent that they, the prosecutor or the
court would grant defendant any particular benefit if he told them how the
killings happened." ... Rather, the interrogators' admonitions did no more
than tell defendant the benefit that might " ' "flow[ ] naturally
from a truthful and honest course of conduct" ' [citation]...." .

The interrogator in People v. Carrington (2009) 47 Cal.4th 145 (
Carrington ) employed the same techniques. He too tried to convince his suspect
that it would behoove her to explain any mitigating circumstances and
suggested, " 'What if she scared you? She confronted you. Or maybe there
was someone else with you.' " ... Like the sergeant, the interrogator in
Carrington encouraged the suspect to tell the truth and take the weight off her
shoulders... And he promised that if the suspect cooperated during the
interview, the officers " 'would try to explain this whole thing with,
with Los Altos P.D. as [best] we can.' "

None of these exhortations crossed the impermissible line and rendered the
police conduct coercive. The officer's statement that "he would help
defendant in explaining 'this whole thing' to the Los Altos police did not
constitute a promise of leniency...." ... Nor did the assurances that the
police were attempting to understand the defendant's motivation coerce her to
confess; rather "they merely suggested possible explanations of the events
and offered defendant an opportunity to provide the details of the crime."

The sergeant used the very same interrogation techniques in trying to persuade
defendant to tell the truth. Neither his repeated references to the district
attorney, his attempts to get a better understanding of defendant's motives and
to extract mitigating circumstances, nor his encouragement to defendant to lighten
his load constituted coercion, even when considering defendant's age and lack
of experience with the criminal justice system. Although defendant, to his
credit, had no criminal record and was a very young adult, there is nothing in
the record to suggest he was particularly vulnerable, did not understand
English, or was mentally or emotionally compromised. Given the utter lack of
coercive police interrogation and no evidence defendant's statements were not
voluntary, we conclude the trial court properly admitted the statements he made
during his interrogation."Click
here for the complete decision.

("If
for some reason you went in [the restaurant] to do a robbery and somehow the gun
went off [accident]" was not a statement that suggested leniency)

In Commonwealth v. Johnson (2012)
the Supreme Judicial Court of Massachusetts upheld the admissibility of the
defendant's confession. On appeal, the defendant had argued that his statements
were not made voluntarily, claiming that at the time of the interview, he was
young, inexperienced, terrified, and likely intoxicated, and that, during the
interview, Detective Black lied about forensic evidence implicating him and
falsely suggested that confessing would be advantageous. From the court's
opinion:

"Similarly, there is scant justification for the defendant's current
contention that he was "terrified," such that his statements were not
made voluntarily. To be sure, Black noted that the defendant briefly put his
head in his hands and, at times, seemed "nervous" and
"scared." On the other hand, the defendant also appeared lucid,
coherent, and articulate throughout the questioning, and Black told him, in a
nonaggressive manner, "I'm not trying to scare you and I hope you
understand that. I'm trying to explain to you how serious this is." The
defendant's emotional state is wholly consistent with the situation in which he
found himself and the gravity of the charges he faced; it did not render him so
emotionally unstable or irrational that he could not act voluntarily, nor was
it the product of any alleged police coercion.

Relatedly, Black also never improperly implied that confessing would benefit
the defendant. Specifically, Black told the defendant: "This is kind of a
bad situation"; "If for some reason you went in [the restaurant] to
do a robbery and somehow the gun went off, I don't know how, today is the day
to tell me that"; and "I want to give you the opportunity today to
get out in front of this." These statements fall within the general rule
that "[a]n officer may suggest broadly that it would be 'better' for a
suspect to tell the truth, ... or may state in general terms that cooperation
has been considered favorably by the courts in the past."Click here for the
complete decision.

(Rationalizing
a defendant's actions (self-defense/accident) in such a way that he "might
hope that he would not be charged with murder" did not render the
confession inadmissible)

In State v. Fundaro (2012)
the Court of Appeals of Michigan upheld the trial court's denial of Fundaro's
motion to suppress his statements. "Fundaro explained that the officers
kept telling him that it sounded like it was an accident or self-defense and
that it would be better for him if he would just tell them what happened. He
stated that he would never have admitted to committing the crime had he known
that he would be facing life in prison.

At the hearing, Wittebort testified that he and Troy tried to get Fundaro to
tell them about the stabbing by throwing out "theories" or
"scenarios" that might help Fundaro rationalize what happened:

It's just another, it's another theory.... I mean, the bottom line is we're trying
to get to the bottom of what happened. So, throw a bunch of scenarios ... and
see which ... appeals to him. So, I mean, it's just another rationalization
that was tossed at Mr. Fundaro.

Although they suggested theories and scenarios under which Fundaro might not be
guilty of murder, Wittebort testified that he never promised Fundaro leniency
and that he did not hear anyone else promise him leniency. And Fundaro
testified that the officers talked about leniency, but did not specifically
promise him anything. Indeed, he acknowledged that Troy told him that he could
not promise him anything. Fundaro suggests that he only confessed because the
officers convinced him that he would not be charged with murder, but the
officers used these types of themes from the very beginning of the interview
and Fundaro had no trouble denying involvement throughout the majority of the
questioning. Moreover, during the interview, and despite all the allegedly
misleading statements, Fundaro repeatedly indicated that he understood that he
would likely go to prison; he even told Mistretta: " 'I killed a guy and I
went in there to rob the joint. I'm still going to go to prison?' "

.... Although the officers might have helped him rationalize
his actions in such a way that he might hope that he would not be charged with
murder, the evidence does not demonstrate that these tactics so affected
Fundaro that his will was overborne or his capacity for self-determination was
critically impaired."Click here for the
complete decision.

(Court rules that accident scenario is not
coercive)

In People v. Batiste (2011),
the Court of Appeal, 1st District, Div. 3, California, the defendant claimed
that his confession was coerced because it was the product of deception or
implied promises of leniency by the officers. From the court's opinion:

"Batiste argued in the trial court that the officers made an implied
promise of leniency when they suggested he might have acted in self-defense.
That argument lacked merit. Here, as in People v.. Carrington (2009) 47
Cal.4th 145, 171, "suggestions that the ... homicide might have been an
accident, a self-defensive reaction, or the product of fear, were not coercive;
they merely suggested possible explanations of the events and offered defendant
an opportunity to provide the details of the crime. This tactic is permissible.
[Citation.] Moreover, any benefit to defendant that reasonably could be
inferred from the substance of [the officer's] remarks was ' " 'merely
that which flows naturally from a truthful and honest course of conduct,'
" ' because the particular circumstances of a homicide can reduce the
degree of culpability, and thus minimize the gravity of the homicide or
constitute mitigating factors in the ultimate decision as to the appropriate
penalty. [Citation]."Click here for the
complete decision.

(Suggesting the homicide was an accident or
self-defense was not coercive)

In People v. Carrington,
(July 2009) the Supreme Court of California upheld the confession that the
defendant killed three people and examined each interrogation to assess the
defendant's claims that she confessed due to promises of leniency.

In their opinion the Supreme court stated that the "Defendant also contends
that Detective Lindsay's assurances that the police merely were attempting to
understand defendant's motivation in committing the crimes impermissibly
coerced her to confess. To the contrary, Detective Lindsay's suggestions that
the Gleason homicide might have been an accident, a self-defensive reaction, or
the product of fear, were not coercive; they merely suggested possible
explanations of the events and offered defendant an opportunity to provide the
details of the crime. This tactic is permissible."

They also stated that "The statements made by the officers did not imply
that by cooperating and relating what actually happened, defendant might not be
charged with, prosecuted for, or convicted of the murder of Esparza. The
interviewing officers did not suggest they could influence the decisions of the
district attorney, but simply informed defendant that full cooperation might be
beneficial in an unspecified way. Indeed, defendant understood that punishment
decisions were not within the control of the police officers. As noted above,
she said it "just depends on the judge and DA and how are they going to
prosecute it." Under these circumstances, Detective Sherman's statement
that he would inform the district attorney that defendant fully cooperated with
the police investigation did not constitute a promise of leniency and should
not be viewed as a motivating factor in defendant's decision to confess." Click here for the
complete decision.

In People v. Wroten (2007) Dr. Richard Leo testified that
the interrogators suggested to the defendant "that the offense was
accidental, thereby minimizing the suspect's perception of the consequences of
an admission and implying that an accidental killing might result in leniency.
This technique can increase the risk of a false confession." The court
rejected this position and the jury convicted the defendant of first degree
murder. In their review of the case the Court of Appeal, 2nd District, Division
2, California stated "There were also no promises of leniency made to
appellant. The statements he points to as making such promises are at worst
ambiguous and, in any event, did not pervade the interrogation. Detective
Lait's statement that they were giving appellant a "million dollar
opportunity" to explain whether the shooting was intentional or accidental
contains no promise of benefit. While the detective stated that knowing whether
the murder was intentional or accidental might make a difference in "how
we proceed," he did not say it would benefit appellant or that it would
make a difference as to whether they would proceed. Furthermore, after
Detective Lait made those statements, appellant continued to deny involvement
in the Mosley shooting....Those statements did not overbear his will to resist
and proximately cause him to confess. Detective Garrido's statement that they
wanted to get appellant "cleared up" was little more than
encouragement to tell the truth." Click here for the
complete decision

(Court
upholds admissibility of confession in which detectives focused on difference
between accidental and intentional killing)

In Bramley v. State (2006) the Indiana
Court of Appeals upheld the admissibility of the defendant's confession. In
their opinion the court stated:

"The voluntariness of a statement is determined by examining the totality
of the circumstances surrounding the interrogation.... Relevant factors include
the length, location, and continuity of the interrogation, and the maturity,
education, physical condition, and mental health of the defendant. Id. In
making its determination, the trial court weighs the evidence to ensure that a
confession was not obtained "through inducement, violence, threats or
other improper influences so as to overcome the free will of the accused."
.... A confession is inadmissible if
it is obtained by promises of mitigation or immunity, but vague and indefinite
statements by the police that it would be in a defendant's best interest if he
cooperated do not render a subsequent confession inadmissible.... Where a promise
of leniency stems from a defendant's specific request for leniency as a
precondition for making a statement, the voluntariness of the statement is not
induced by misconduct.

Bramley directs us to three statements that the detectives made that he
contends amount to promises of leniency and threats and render his confession
involuntary. First, Bramley directs us to an analogy Detective Jowitt used
while transporting him to the Hamilton Count Jail. Detective Jowitt told
Bramley that there were three suspects and only one apple and that "[o]ne
person generally gets to eat the whole apple." ... Detective Jowitt
testified at trial that the apple in the analogy represented a plea deal a
defendant could get if he cooperated with the police before the other suspects
did.

Bramley next directs us a statement Detective Jowitt made during the
interrogation:

And you don't want other people giving accounts of Michael Shane Bramley
because you don't know what they're saying and you don't know ... like I said
you don't know the spin that they're putting on it. The spin can be real
important. Ok? 'Cause that can be the difference between Michael Shane Bramley
is ... a cold hearted ruthless, dangerous, psychopathic, you know yada, yada,
yada, or just hey, something happened up there and it didn't really go down
like it was supposed to and there was ... a problem or there was a mistake or
there was an accident or it didn't happen quite the way it maybe appeared just
by looking at the surface facts of it, okay?

Finally, Bramley highlights statements that the detectives made that he claims
implied that he would receive a lesser sentence if he testified that Moody's
death was an accident. Typical examples of the detectives' statements are:
"I sure wouldn't want to be put in the situation where someone else is
putting stuff down on me that wasn't quite the way it happened," id. at
363, and "[the difference between intentional murder and an accident] is
just different. Worse thing in the world [is intentional murder]," id . at
377. The detectives focused on the differences between an accidental and an
intentional killing and emphasized the benefits that a suspect could reap if he
tells his side of the story because the other suspects cannot adversely fill in
the "gray parts" of the crime:

Here, there were two other suspects in Moody's murder and Detective Jowitt
tried to explain to Bramley, by using the apple analogy and the "grey
parts" comment, that the other two suspects could wrongly implicate
Bramley if he did not tell the truth about his role in the crime. While Bramley
may have lost the prisoner's dilemma game, Detective Jowitt's comments do not
rise to the level of specific promises of leniency or threats that have
previously been held to render a confession involuntary. Click for full
decision

(Employing
deceptive practices to elicit a confession are not coercive)

In US v Hunter (February
2015) the US District Court, N.D. Georgia, upheld the lower court's decision
not to suppress the defendant's incriminating statements. From the court's
opinion:

Hunter argues that the statements he made to the agents on May 16, 2013, were
involuntary, and are therefore inadmissible, because: (1) he "believed
that the agents came to his residence ... to help Anna, [ ] who was in
danger," but he "did not understand that the agents were looking for
child pornography,; (2) he did "not believe he had any choice" to
make a statement "because of his prior experience with law
enforcement," [; and (3) the agents never advised him that he had a right
to counsel or that his statements could be used against him. Whether a
statement was voluntarily given must be examined in light of the totality of
the circumstances.... "This totality of the circumstances test directs the
Court ultimately to determine whether a defendant's statement was the product
of 'an essentially free and unconstrained choice.' ... "Among the factors
the Court must consider are the defendant's intelligence, the length of his
detention, the nature of the interrogation, the use of any physical force against
him, or the use of any promises or inducements by police." Id.
(citations omitted).

The focus of the voluntariness inquiry is whether the defendant was coerced by
the government into making the statement, so "the relinquishment of the
right must have been voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception."
... Thus, "[t]hose cases where courts have found confessions to be
involuntary 'have contained a substantial element of coercive police conduct.'
"Sufficiently coercive conduct normally involves subjecting the accused to
an exhaustingly long interrogation, the application of physical force or the
threat to do so, or the making of a promise that induces a confession."
Another "factor to consider among the totality of the circumstances in
determining voluntariness' " is whether the police employ deceptive
tactics to elicit a confession. However, " '[c]ourts have been reluctant
to deem trickery by the police a basis for excluding a confession on the ground
that the tricks made the confession coerced and thus involuntary.' Rather,
courts have held that "trickery or deceit is only prohibited to the extent
it deprives the suspect of knowledge essential to his ability to understand the
nature of his rights and the consequences of abandoning them." Thus,
"[t]he kinds of deception that are generally deemed to trigger suppression
are lies about a defendant's legal rights ( i.e ., 'you must answer our
questions'), false promises ( i.e., 'whatever you say will be just between
us'), or threats ( i.e., 'if you don't talk, you won't see your family for a
very long time') ."

Additionally, the law in the Eleventh Circuit "is clear, that the police's
use of a trick alone will not render a confession involuntary," unless
there are "other aggravating circumstances" beyond the mere use of
deceptive tactics, ..... Indeed, "[c]onfessions are not generally rendered
inadmissible merely because they are obtained by fraud, deception, or trickery
practiced upon the accused, provided the means employed are not calculated to
procure an untrue statement and the confession is otherwise freely and
voluntarily made."

Under the totality of the circumstances in this case, the Court concludes that
Hunter's statements to the agents on May 16, 2013, were made voluntarily.

In Jefferson v. State (July 2014) the
Supreme Court of Nevada upheld the lower court's decision to admit the
defendant's confession.In this
case the defendant argued that

" the district court erred in denying his motion to suppress
the statements he made to law enforcement. He argues that his confession was
involuntary because he was subjected to repeated and prolonged questioning, as
well as deceptive interrogation techniques.From the court's opinion:

"We
conclude that substantial evidence supports the district court's conclusion
that Jefferson's confession was voluntary. Jefferson, an adult, does not claim
that he misunderstood what was happening; he responded cogently to the
detectives' questions; his interrogation began with an explanation of his Miranda
rights; it took place at a reasonable time (9:00 p.m.) and lasted only 45
minutes; and, while one of his hands was handcuffed to a bar, he was free to
leave any time for water or to use the restroom.

Additionally, Jefferson's argument that his confession was
rendered involuntary by the detectives' deceptive interrogation techniques is
unavailing. Jefferson argues that the detectives misrepresented DNA evidence by
exaggerating what DNA evidence could reveal to them and the time frame in which
they would learn the information. However, "an officer's lie about the strength
of the evidence against the defendant is, in itself, insufficient to make the
confession involuntary." ... The question is whether the tactics " 'interject[ed]
the type of extrinsic considerations that would overcome [Jefferson's] will by
distorting an otherwise rational choice of whether to confess or remain
silent.' ... In this case, such tactics would not likely overcome Jefferson's
will because, if Jefferson was truly innocent, he would not be concerned that
DNA evidence would implicate him. Rather, he would know that it would exonerate
him. Thus, nothing about the detectives' tactics appears coercive or likely to
produce a false confession.

Jefferson's arguments that the detectives impermissibly
implied that the prosecutor would be informed that he refused to cooperate, and
threatened to take away his children are equally unavailing. The detectives
indicated that if the DNA showed something different than what Jefferson had
told them, then the DA would be aware of the discrepancy, which would likely be
bad for Jefferson. But that is not the equivalent of a threat to inform the DA
that Jefferson was not cooperating. Likewise, the detectives told Jefferson
that, given the allegations against him, he might not be able to be around his
children for a while. However, this statement was only made in response to
Jefferson's own questions regarding his children. This was not a coercive
tactic to get Jefferson to confess, but merely a true statement of the current situation."

("the law permits the police to pressure and cajole, conceal
material facts, and actively mislead")

In US v. Graham (June 2014)
the US District Court, N.D. Georgia, upheld the admissibility of the
defendant's incriminating statements, and carefully examined the issue of
police deception during an interrogation.The District Court stated the following in their opinion:

"The
focus of the voluntariness inquiry is whether the defendant was coerced by the
government into making the statement, so "the relinquishment of the right must
have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception." ... Thus,
"[t]hose cases where courts have found confessions to be involuntary 'have
contained a substantial element of coercive police conduct.'... "Sufficiently coercive conduct normally
involves subjecting the accused to an exhaustingly long interrogation, the
application of physical force or the threat to do so, or the making of a
promise that induces a confession."

... Whether the police employ deceptive tactics to elicit a
confession is "one factor to consider among the totality of the circumstances
in determining voluntariness." ... However, "[c]ourts have been reluctant to deem
trickery by the police a basis for excluding a confession on the ground that
the tricks made the confession coerced and thus involuntary." ... Rather, courts
have held that "trickery or deceit is only prohibited to the extent it deprives
the suspect of knowledge essential to his ability to understand the nature of
his rights and the consequences of abandoning them." ... Thus, "[t]he kinds of
deception that are generally deemed to trigger suppression are lies about a
defendant's legal rights ( i.e ., 'you must answer our questions'),
false promises ( i.e., 'whatever you say will be just between us'), or
threats ( i.e., 'if you don't talk, you won't see your family for a very
long time') ."

... Although Graham asserts that the agents' use of deception
in this case "[wa]s itself aggravated and standing alone is sufficient basis to
hold that [his] statements ... were the product of coercion," [Doc. 41 at 23],
the law in the Eleventh Circuit "is clear, that the police's use of a trick
alone will not render a confession involuntary," unless there are "other
aggravating circumstances" beyond the mere use of deceptive tactics, ... Indeed,
"[c]onfessions are not generally rendered inadmissible merely because they are
obtained by fraud, deception, or trickery practiced upon the accused, provided
the means employed are not calculated to procure an untrue statement and the
confession is otherwise freely and voluntarily made."

Graham
cites to a number of cases in which statements elicited from a defendant in
response to police deception were found involuntary,.... but these cases all involve significant
aggravating circumstances not present here, see, e.g., Lynnum, 372 U.S.
at 534 (mother's confession held involuntary where "made only
after the police had told her that state financial aid for her infant children
would be cut off, and her children taken from her, if she did not 'cooperate'
"); Spano, 360 U.S.
at 321–22 (finding confession involuntary where
defendant was foreign-born, had only one-half year of high school education and
a history of emotional instability, and was subjected to prolonged late-night
questioning that included repeated denials by police of the request to consult
with attorney and the threat that if he remained silent his friend on the
police force would lose his job); Irons, 646
F.Supp.2d at 971–72 (confession involuntary where
police sought to "exploit [defendant's] friendship" with a female officer, in
whom he also had a romantic interest, by falsely telling him that the officer
had been arrested and that he "should confess in order to protect her from
prosecution"); but see United States v. Charlton, 565 F.2d 86, 89 (6th Cir.1977)
(confession voluntary notwithstanding police threats to arrest son absent
cooperation).... Indeed, the cases
cited by Graham illustrate nothing short of "extreme forms of deception or
chicanery," United States v. Jacques, 744 F.3d 804, 812 (1st Cir.2014)
(citations and internal marks omitted), which are far removed from the ruse
used here. Moreover, the defendants in those cases were given the impression by
police that they could avert some impending harm that would otherwise befall
their family or friends, if only they would "cooperate" with the investigation.
In this way, they were essentially confronted with the dilemma of either
cooperating with the police or else allowing their loved ones to suffer as a
result of their own recalcitrance, which "not only impaired [the defendants']
free choice, but also cast doubt upon the reliability of the resulting
confession," Holland, 963 F.2d
at 1051. Here, in contrast, there is not the slightest hint
that the agents rendered Graham's confession unreliable by confronting him with
a similar ultimatum that directly implicated any close personal or familial
relations. And if Graham was actually deceived by the ruse and agreed to speak
with the agents in order to help them find the missing girl, as he appears to
allege, see [Doc. 41 at 5, 24–25], this would not make his
statements less reliable, since it would have been counter-productive for him
to provide the agents with false information that would only impede their
efforts to locate her.

In brief, "the effect of
psychological pressure or deception on the voluntariness of a statement depends
on the particular circumstances in each case,"... and the circumstances in this case simply
do not show that the agents' misrepresentation about a missing girl,
unaccompanied by any aggravating factors, rose to the level of "coercive police
activity,"... that so overpowered
Graham's will or "critically impaired" his "capacity for self-determination,"
as to render his statements involuntary, ... Indeed, "[f]ar from making
the police a fiduciary of the suspect, the law permits the police to pressure
and cajole, conceal material facts, and actively mislead—all up to limits
not exceeded here[.]"... Accordingly, the ruse employed by Agents Harris and
Westhall "did not amount to coercion in violation of [Graham's] Fifth Amendment
rights," ... and the totality of the evidence in this case demonstrates that
Graham's statements at the interview of May 31, 2012, were made voluntarily.

In State v. Smith (February
2014) the Court of Appeals of Nebraska found that lying to a suspect about DNA
evidence did not render the confession inadmissible. From the court's opinion:

"Smith asserts that he repeatedly denied the accusations until the
detective "told him the police had his DNA evidence on [E.H.'s]
clothes," and this made "Smith believe that the police had scientific
proof that he [was] guilty of the charges." Smith claims that the
detective's tactics were employed to elicit an incriminating statement and that
"[a]lthough providing false information to a suspect has been deemed
normal police protocol, taken in the totality of the circumstances it was a
direct violation of ... Smith's constitutional rights."

It is fundamental that a statement must be suppressed if it is obtained by
offensive police practices.... However, mere deception will not render a
statement involuntary or unreliable; the test for determining the admissibility
of a statement obtained by police deception is whether that deception produced
a false or untrustworthy confession or statement. Id. If a benefit is offered
in exchange for testimony, and the offer is definite, then a confession is
involuntary and must be suppressed...

Nothing in this record indicates that Smith's statements made to Kavars or the
letter written to E.H. were false or untrustworthy, nor is there any evidence
that Kavars made any inappropriate offers to Smith in exchange for a statement.
Kavars testified that the OPD has a protocol for conducting suspect interviews,
which protocol includes providing false information to a suspect as a means of
eliciting statements. Kavars explained that in this case, he had clothing that
belonged to E.H. but that it did not have any DNA from Smith, contrary to what
he suggested to Smith during the interview. Upon cross-examination, Kavars
acknowledged that he obtained clothing from E.H. "[t]o lead the suspect to
believe I had evidence I didn't have," and he agreed that the clothing was
"basically used as a prop." Kavars confirmed that during his
interview with Smith, he pulled those clothes out of an envelope and told Smith
his DNA was on the clothing, and told him that on more than one occasion. He
agreed it was a lie, but was a tactic he used. Kavars also "led [Smith] to
believe that everything that happened with the victim at that residence was
okay with her when she told me in the interview it wasn't."

On redirect, however, he confirmed that this was an acceptable method of
interviewing and that further, he did not force Smith "in any way to admit
that he had rubbed his penis on [E.H.'s] body." He further confirmed that
he did not "force him in any way to admit that he had, in fact, pulled his
pants down and touched the victim."

Kavars' testimony is supported by the recordings of the interview......

The tactics used by the police in this case, while deceptive, cannot be
characterized as such coercion that it caused Smith's "will to be easily
overborne." Click
here for the complete decision.

(Lying about evidence such as minimizing the
victim's injury, and telling the defendant gun shot residue and eyewitnesses
showed that he was the shooter, would not cause an innocent person to confess)

In People v. Boner(2012)
the Court of Appeal, Third District, California upheld the admissibility of the
defendant's confession. The court heavily relied upon the DVD of the
interrogation to assess the defendant's claim that his statements were
involuntary because the police the lied to him about the victim's physical
condition. From their opinion the court stated that:

"[T]elling a suspect falsehoods regarding the status of the case against
him is widely accepted." ... "Where the deception is not of a type
reasonably likely to procure an untrue statement, a finding of involuntariness
is unwarranted." .....

The detectives said the gunshot residue test and eyewitness statements showed
defendant was the shooter, and both Antwaine and Moody had told the detectives
everything. Although apparently these statements were not true, we do not find
that any of these statements, nor all of them together, would tend to cause an
innocent person to confess.

Defendant contends that minimizing the victim's injury, as well as the
statements that defendant "can help [himself] out" and "can dig
... so big of a hole that we can't help you out," amounted to an improper
offer of lenity if defendant confessed. We are not persuaded by this argument.

Here, the detectives did not state or imply that if defendant admitted he shot
the victim he would get lenient treatment because the victim had not been badly
hurt. Instead, they employed a technique of minimizing the consequences of
defendant's actions. We do not see that such conduct is likely to make an
innocent person falsely confess.

In this case defendant knew he had shot someone during an armed robbery, and
knew he was being questioned about that incident. The fact he was told the
victim only needed a band-aid was not the sort of deception that would tend to
cause an innocent person to admit to the shooting."Click here for the
complete decision.

(Incriminating statements admissible even
though police deceived defendant about what offenses they were investigating)

In US v. Whitfield(2012)
the U.S. Court of Appeals, Fourth Circuit upheld the lower court's decision not
to suppress incriminating statements even though the investigating police
"deceived him [defendant] about the offenses they were
investigating." From the Appeals Court opinion:

"Whitfield's chief complaint is that the police officers deceived him
about the offenses they were investigating, particularly those involving the
forced accompaniment and death of Mrs. Parnell. Nevertheless, Whitfield
concedes that the officers "had no duty to advise [him] of the identity of
the specific offense under investigation" or "inform [him] of every
potential theory of liability related to [his] conduct."... Although
Detectives Sampson and Sumner led Whitfield to believe that their only interest
at the start of the interview was the Belmont home break-ins, Whitfield
obviously knew that his interactions with Mrs. Parnell were the result of his
breaking and entering of her home. Whitfield persists, however, that he could
not have rationally assessed the consequence of confessing to the break-ins because
Sergeant Reynolds had indicated that Mrs. Parnell was alive and had
"ID'd" Whitfield.... Because of Reynolds' misrepresentations,
Whitfield contends that he mistakenly believed that he was being investigated
for only a minor crime.

As the Supreme Court has explained, "[p]loys to mislead a suspect or lull
him into a false sense of security that do not rise to the level of compulsion
or coercion to speak are not within Miranda's concerns." Illinois
v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990).

(Telling the suspect that the victim had
accused him of a more serious crime is not a coercive tactic - even though the
victim had not made such an assertion)

In People v. Jaeger (2012)
the Supreme Court, Appellate Division, Third Dept., New York, the court found
that they were not "persuaded by defendant's contention that his
statements were the product of coercive and deceptive interrogation practices
by the police. "Police may generally engage in deception while
investigating a crime, with suppression required only where 'the deception was
so fundamentally unfair as to deny due process or [where] a promise or threat
was made that could induce a false confession' "......On more than one
occasion during the interview, Stack suggested to defendant that victim A
accused him of having intercourse with her despite the victim neither stating
nor implying that any intercourse had occurred. However, as the tactic employed
by Stack was not accompanied by any threats or promises that might induce a
false confession and was not fundamentally unfair, the deception did not render
defendant's confessions involuntary."Click
here for the complete opinion

(Lying
about evidence (number of witnesses that identified suspect) did not render confession
inadmissible)

In Arrue v. Hedgpeth (2010)
the US District Court, C.D. California upheld the lower court's decision to
admit the defendant's incriminating statements. In this case the defendant
claimed that the "police used coercive tactics that overcame his will,
leading to his confession. Petitioner argues that the police lied to him when
they told him that he had been identified as one of the perpetrators and when
they offered him leniency by telling him that if he confessed, he would avoid a
special circumstances murder conviction and would help his family. Petitioner
says the officers also threatened him by telling him he was "fucked"
because he faced a special circumstances conviction, which meant that he would
be in prison for life if he did not confess. The California Court of Appeal
denied Petitioner's claim, finding that the totality of the circumstances
showed that the confession was voluntary."

The District Court further stated that, "...the state court found that,
although police did use language such as "fucked" to describe
Petitioner's situation, they did so only in describing the facts in colorful
language, and that police made no threats or promises which might have
overborne Petitioner's will.....The only circumstance the court found could
have suggested an involuntary confession was the fact that police lied to
Petitioner about being identified as the shooter by his three confederates.
But, the record shows that police did not entirely invent this statement; at
trial, both attorneys agreed that one person had identified Petitioner as the
shooter, but that it was untrue that three people had identified him. In any
event, the state court found that police deception about whether Petitioner had
been identified as the shooter did not render the confession involuntary. Click
here for the complete decision.

(Lying to a suspect about the extent of
inculpatory evidence against him does not render a confession inadmissible, and
telling a suspect that his cooperation would be to his benefit is not coercive)
In State v. Perez (October
2010) the Court of Appeals of Wisconsin upheld the admissibility of the
defendant's incriminating statements even though the police lied to him about
the extent of the inculpatory evidence, and even though the interrogator told
the defendant that his cooperation would be to his benefit.

On the issue of misrepresenting evidence the court pointed out that, "Of
the numerous varieties of police trickery, however, a lie that relates to a
suspect's connection to the crime is the least likely to render a confession
involuntary. Such misrepresentations, of course, may cause a suspect to
confess, but causation alone does not constitute coercion; if it did, all
confessions following interrogations would be involuntary because "it can
almost always be said that the interrogation caused the confession." Thus,
the issue is not causation, but the degree of improper coercion.... Inflating
evidence of [the defendant's] guilt interfered little, if at all, with his
"free and deliberate choice" of whether to confess, for it did not
lead him to consider anything beyond his own beliefs regarding his actual guilt
or innocence, his moral sense of right and wrong, and his judgment regarding
the likelihood that the police had garnered enough valid evidence linking him
to the crime. In other words, the deception did not interject the type of
extrinsic considerations that would overcome [the defendant's] will by
distorting an otherwise rational choice of whether to confess or remain
silent."

The court further stated, "DuBois did not promise Perez leniency in
exchange for his confession. "An officer telling a defendant that his
cooperation would be to his benefit is not coercive conduct, at least so long
as leniency is not promised. Similarly, coercive conduct does not occur when
... an officer, without promising leniency, tells a defendant that if he or she
does not cooperate the prosecutor will look upon the case differently."Click
here for the complete decision.

(Court upholds confession in which
investigators lied about the strength of their evidence during interrogation)

In Mata
v. Martel, 2009, the United States District Court, N.D. California,
upheld the confession which was the result of an interrogation in which the
investigators " used two ruses". The investigator "told Mata
that his saliva provided a DNA match with sperm found on the victim's underwear
and that the victim's sister, Julissa, had seen Mata having sex with the
victim. The detectives also made suggestions about what they thought happened.
They encouraged Mata to tell the truth, told him that he wouldn't want to look
like a liar if he went to court, called him a liar at certain points, and
accused him of calling the victim a liar. .....They also told Mata that they
didn't believe him, and that they believed he had raped the victim."

Furthermore, "Detective David Gonzalez suggested how he thought the sexual
assault occurred: "Here's what I think happened, okay, I think that she's
probably a very promiscuous girl ... I think that she was very attracted to you
and liked you ... she started saying that, you know, she liked you ... and
maybe wanted to do things with you ... you didn't intend, you know, you didn't
intend to have sex with her ... but it just happened." Click
here for the complete decision.

(Falsely telling suspect he has been
identified as the shooter is not coercive)

In People v. Rubio (2009) the
Appellate Court of Illinois Second District upheld the admissibility of a
confession the defendant claimed was the result of coercive police deception.
From the Appellate Court opinion:

"In urging that his confession was involuntary, defendant emphasizes that
the detectives misled him as to the strength of the evidence against him by
insinuating that the shooting had been filmed and that several witnesses had
identified him as the person who shot the victim or escaped the scene after the
shooting. However, defendant correctly concedes that "police trickery,
standing alone, does not invalidate a confession as a matter of law." Frazier
v. Cupp, ("The fact that the police misrepresented [the evidence] is,
while relevant, insufficient in our view to make this otherwise voluntary
confession inadmissible"); ("A misrepresentation which prompts
inculpatory statements is only one factor to be considered in determining the
voluntariness of the resulting statements"). In Frazier, Kashney, and
Martin, police or the prosecution falsely exaggerated the evidence against the
defendants, and the defendants thereafter confessed their guilt. See Frazier,
(defendant falsely told that his accomplice had confessed); Kashney,
(prosecutor falsely told defendant that his fingerprints were found at the
crime scene); (defendant falsely told that an accomplice had identified him as
" 'the triggerman' "). The courts held the confessions to have been
voluntary and admissible.

Defendant recognizes the above line of precedent and instead relies on another
case, People v. Bowman, to support his argument that the police
deception here rendered his confession involuntary. In Bowman, police enlisted
the defendant's cell block mate to convince the defendant, who was
"intensely fearful" of being returned to a particular correctional
center in which he had spent four years, "that if [the defendant]
[confessed], [he] would avoid a transfer to [the correctional center] and stay
in the county jail long enough for [the cell block mate] to be released from
jail, to return, and to assist in [the defendant's] escape." Bowman. The
appellate court affirmed the trial court's judgment that the defendant's
confession was involuntary; it concluded that police used deceptive
interrogation tactics, calculated to take advantage of the defendant's intense
fear of returning to the correctional center, as a means to overcome the
defendant's free will.

We see a wide chasm between Frazier, Kashney, and Martin on one hand and Bowman
on the other. In Frazier, Kashney, and Martin, the deception related to the
ability to prove the defendants' involvement in the crimes; in Bowman, the
police used deception to offer the defendant a provocation to confess extrinsic
to the interrogation process. In an appeal of a habeas corpus proceeding in an
Illinois case, the Seventh Circuit aptly described the difference between these
two types of deception:

"Of the numerous varieties of police trickery * * *, a lie that relates to
a suspect's connection to the crime is the least likely to render a confession
involuntary. [Citations.] Such misrepresentations, of course, may cause a
suspect to confess, but causation alone does not constitute coercion; if it
did, all confessions following interrogations would be involuntary because 'it
can almost always be said that the interrogation caused the confession.'
[Citation.] Thus, the issue is not causation, but the degree of improper
coercion * * *. Inflating evidence of [the defendant's] guilt interfered
little, if at all with his 'free and deliberate choice' of whether to confess
[citation], for it did not lead him to consider anything beyond his own beliefs
regarding his actual guilt or innocence, his moral sense of right and wrong,
and his judgment regarding the likelihood that the police had garnered enough
valid evidence linking him to the crime. In other words, the deception did not
interject the type of extrinsic considerations that would overcome [the
defendant's] will by distorting an otherwise rational choice of whether to
confess or remain silent."

(A fake polygraph test did not render
involuntary the defendant's incriminating statement; a listing of other
misrepresentations)

In People v. Mays (May 2009)
the Court of Appeal, Third District, California found that "mock polygraph
test administered to defendant after he requested a lie detector test during
detective's questioning, and fake test results, did not render involuntary
defendant's incriminating statement, after he received the fake test
results.." From the court's decision:

Police deception during a custodial interrogation may but does not necessarily
invalidate incriminating statements. A psychological ploy is prohibited only
when, in light of all the circumstances, it is so coercive that it tends to
result in a statement that is both involuntary and unreliable. [undercover law
enforcement officer posing as fellow inmate was not required to give Miranda
warnings to suspect.

As summarized in People v. Chutan: "Police trickery that occurs in
the process of a criminal interrogation does not, by itself, render a
confession involuntary and violate the state or federal due process clause.
Why? Because subterfuge is not necessarily coercive in nature. And unless the
police engage in conduct which coerces a suspect into confessing, no finding of
involuntariness can be made.

"So long as a police officer's misrepresentations or omissions are not of
a kind likely to produce a false confession, confessions prompted by deception
are admissible in evidence. [Citations.] Police officers are thus at liberty to
utilize deceptive stratagems to trick a guilty person into confessing. The
cases from California and federal courts validating such tactics are legion.
[officer falsely told the suspect his accomplice had been captured and
confessed]; [officer implied he could prove more than he actually could];
[officers repeatedly lied, insisting they had evidence linking the suspect to a
homicide]; [wounded suspect told he might die before he reached the hospital,
so he should talk while he still had the chance]; [police falsely told suspect
a gun residue test produced a positive result]; [officer told suspect his
fingerprints had been found on the getaway car, although no prints had been
obtained]; and [suspect falsely told he had been identified by an eyewitness].
[defendant's confession to child molestation was not rendered involuntary by
officer's failure to reveal he was conducting a criminal investigation and not
just asking questions regarding placement of the children.

People v. Smith, held it was not impermissibly coercive for a police
officer to tell the defendant that a "Neutron Negligence Intelligence
Test" (a sham) indicated he had recently fired a gun. Additionally, the
sham did not elicit a full confession, but only incriminating statements.

People v. Farnam, held the defendant's confession to robbery and assault
of hotel occupants was voluntary, despite the police having falsely informed
the defendant that his fingerprints were found on the victim's wallet. In
California, it has been held that if a defendant takes a lie detector test
willingly, " 'neither the fact it was given nor the fact that the
defendant was told by the test giver it revealed in his opinion that defendant
was not telling the truth, inherently demonstrates coercion. [Citation.]'
"

Courts in other states have held defendants' confessions/admissions voluntary
where the police told the defendant he or she failed a polygraph test, when no
real test was performed, or a real test was given but did not show deception by
the defendant, or the police misled the defendant as to the accuracy of the
test or its admissibility in court. [confession voluntary despite police
(apparent) deception in informing the defendant that he failed a polygraph
examination]; [confession voluntary where defendant was hooked up to a
polygraph, but it was not turned on]; [affirmed conviction based on confession
obtained after the police (perhaps) untruthfully told the 17-year-old defendant
that he failed a computer voice stress analyzer, when in fact the test did not
so indicate, or did so unreliably]; [police misrepresentations to defendant
concerning performance on polygraph test did not invalidate confession].)

Here, we disagree with defendant's view that the police engaged in shocking and
outrageous misconduct. The request for a polygraph examination was initiated by
defendant, not by the police. The deception was a mock polygraph. A polygraph
is designed to elicit the truth, and the police already had information from
other sources that defendant was the shooter (including Schallenberg's
identification of defendant as the gray-clad person in the AM/PM photo, and
eyewitness statements that the gray-clad person was the shooter). The use of
the mock polygraph was not likely to produce a false confession. Although
defendant testified he believed polygraphs are 100 percent accurate, that
belief was not induced by the police. Moreover, we know the trickery was not
particularly coercive because, even after the police showed defendant the fake
test results, defendant continued to deny involvement in the crime. He merely
admitted being present at the scene wearing a gray sweatshirt. It was other
evidence, other than defendant's statements, which gave his admission its
weight, i.e., the AM/PM surveillance photo of a gray-clad male, Schallenberg's
identification of defendant as the gray-clad male in the photo, and the
testimony of eyewitnesses that the gray-clad male was the shooter. (Although
the prosecutor used defendant's admissions in closing argument to the jury, he
used them as corroboration for the other evidence.)

Click here for
the complete decision.

(Can an interrogator tell a suspect "this is
just between you and me" when, in fact, the interrogation is being
recorded and the recording will be used against the suspect?)

In Lee v. State (2009) the
Court of Special Appeals of Maryland upheld a trial court's decision to admit
the confession of a defendant who had been led to believe by the interrogator
that their conversation was "just between you and me" when it was
actually being recorded. From the court's decision:

"Appellant's first contention is that the circuit court erred in denying
his motion to suppress the statement that he gave to the police following his
arrest. This contention is based on an exchange between appellant and Detective
Schrott, which occurred after appellant had waived his Miranda rights, and
after some discussion of the events of the evening. This exchange was as
follows:
[APPELLANT:] Yeah, this is being recorded [somewhere aint it?]

[DETECTIVE:] This is between you and me, bud. Only me and you are here, all
right? All right?

Although the suppression court initially expressed "some concern"
that the statement vitiated the Miranda waiver, it ultimately denied appellant's
motion to suppress, stating:
The statement he makes is, this is being recorded, ain't it? The Detective does
not directly answer that question by saying yes or no, but he certainly leaves
the Defendant to believe that the conversation is just between the two of them,
which was not true. But I do not think that the, it changed the Defendant's
willingness to answer the questions in any way. Or violated his rights. So the
Motion to Suppress the Defendant's statement is denied."

The Court of Special Appeals found that "Here, unlike the cases cited,
supra, there was no express promise that the defendant's statements would
remain confidential or that the statements were "off-the-record."
Detective Schrott merely responded to appellant's query regarding whether the
interrogation was being recorded by stating: "This is between you and me,
bud. Only me and you are here, all right? All right?" As the State notes,
this statement did not reflect any agreement of confidentiality. Rather, it was
an equivocal response that was designed, not to establish a confidential
relationship, but to deflect appellant's suggestion that he was aware that the
interrogation was being recorded. We view Detective Schrott's response as
sidestepping appellant's question regarding whether the interrogation was being
recorded.

Even if the response is viewed as an affirmative misstatement that the
interrogation was not being recorded, however, such a response would not
violate Miranda. "There is no requirement that a defendant who has
properly been given Miranda warnings must also be told he ... may be
tape-recorded or video-recorded or both." State v. Vandever, 714
A.2d 326, 328 (N.J.Super.Ct.App.Div.1998), cert. denied, 834 A.2d 405 (2003).
Police deception regarding whether an interrogation is being recorded, does not
contradict the Miranda warning that anything the suspect says can be used
against the suspect. A police officer's false statement that an interrogation
is not being recorded, when in fact it is being recorded, does not render a
confession inadmissible. State v. Wilson, 755 S.W.2d 707
(Mo.Ct.App.1988). " Click here for the complete
decision.

(Interrogators
misrepresentation of hair and fiber evidence is insufficient to make the
otherwise voluntary confession inadmissible)

In State v. Hardy (2009) the
Court of Criminal Appeals of Tennessee, at Nashville upheld the admissibility
of the defendant's confession. In their opinion they state: "Next, the
appellant challenges the admission of his statement on the grounds that
officers were deceptive when they told him they could place him in Vanessa
Claude's van during the month of the crime by dating hair and fiber evidence.
In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420 (1969), police obtained
a full confession from Frazier after they misrepresented to him that his co-defendant
confessed. Viewing the totality of the circumstances, the Supreme Court upheld
the admission of Frazier's statement, concluding that the misrepresentation was
insufficient to make the otherwise voluntary confession inadmissible. We
likewise agree with the trial court's assessment in the present case. Under the
totality of the circumstances, Detective Downing's misrepresentation about
being able to date the appellant's prints in the van was not sufficient to
overbear the appellant's will so as to render his confession involuntary.

Finally, the appellant argues that his confession is involuntary because
officers impliedly gave him false legal advice when they told him that he would
benefit from giving a statement if Lillard had him "snaked up" in
something. The trial court found that "the police officers did not give
false legal advice" to the appellant during the interrogation. We agree
with the trial court that the officers' comments did not amount to false legal
advice. Further, we note that such vague statements encouraging cooperation are
not sufficient to overbear an accused's will so as to render a statement
involuntary." Click
here for the complete decision.

In Weaver v. State (2008) the
police falsely told the defendant during his interrogation that 1) witnesses
saw him commit the crime, (2) his fingerprints were found, and (3) a videotape
showed his involvement in the crime. "Finally, appellant argues that one
of the officers made false promises. After inquiring as to appellant's age, the
officer told appellant he had his whole life ahead of him, even though the
officer knew appellant was charged with capital murder. Additionally, when
discussing appellant's drug use, the officer stated, "You know what if
this just happened when you, you know you might had been doing something you
didn't realize what you were doing, that's fine! There's nothing wrong with
that...." Appellant appears to contend that, by making this statement, the
officer was falsely promising that appellant would not face legal consequences
if he committed the crime while under the influence of an illegal substance"

"In viewing the totality of appellant's interrogation, we determine that
the trial court did not err in concluding that appellant's confession was
voluntary. Appellant's inquiries as to what charges were being brought against
him did go unanswered, but, as the trial court found, the officers specifically
told appellant that they were investigating a capital murder. Officers'
misrepresentations that witnesses, fingerprints, and video linked appellant to
the crime merely related to his connection to the crime and were not the type
of deception that likely causes an involuntary confession. Similarly, any
promises made that appellant "had his whole life ahead of him" or
relating to appellant's drug use during the crime were not of such an influential
nature that would cause appellant to speak." Click here for the
complete opinion.

(Lying
about results of a black light test not coercive)

In Brown
v. State (2008) the court found that "During the interrogation,
Detective Zacharias lied by telling Thomas that the police had conducted a
black light test of the house where Thomas was living. Detective Zacharias lied
further by telling Thomas that this test uncovered traces of Thomas's semen
throughout the house. After these misrepresentations, both detectives testified
that Thomas recanted his previous denial and admitted to fondling Jill between
twelve to fifteen times. Looking at the totality of the circumstances, we
cannot say that the trial court's ruling that Thomas's confession was
voluntary, despite Detective Zacharias's misrepresentation, is against the
overwhelming weight of the evidence." Click here for the complete opinion.

In People v Minniti (2007) the
Illinois Appellate Court upheld a confession that resulted from an
interrogation in which the police misrepresented the evidence against the
suspect. "The defendant contends that his statements were involuntary
because they were the result of police trickery. The trial court found that
there were three instances of police deception. The police lied to the
defendant when they told him that there was (1) satellite imagery showing
someone go from the defendant's home to the victim's home on the night of the
murder and (2) DNA evidence, matching him, found inside the victim. The
police also misled the defendant's father when they told him they wanted to
do a routine follow-up interview of the defendant but did not inform him that
they had DNA evidence from the victim's bathroom indicating that the
defendant had been present inside the victim's home. While we do not condone
Officer Gardner's tactics, the trickery here does not render the defendant's
confession involuntary. Click
here for the complete decision.

We have listed dozens of cases in which the courts have
addressed the issue of lying to the suspect about evidence (click
here) and other trickery and deceit issues (click
here).

(Court
finds that interrogators are permitted to use minimization techniques)

In State v. Belonga (2012)
the Supreme Court of New Hampshire upheld the admissibility of the defendant's
incriminating statements, finding that police can use minimization techniques.
In this case the defendant claimed that the interrogator's "minimization
of the possible causes of Rylea's [her child] injuries affected the
voluntariness of her statements." The court pointed out in their opinion
the following:

"At the suppression hearing, Maher testified that he used an interrogation
technique that involves "minimizing the actions [of defendants to suggest]
that they are less culpable for their actions, whether it be due to a chemical
dependence or being under the influence of alcohol or drugs or being [under]
the stress of a single parent." Therefore, this interrogation technique
does not entail the use of outright falsehoods, but rather the use of subtle
subterfuge. Given that police are permitted to mislead a suspect, they are
likewise permitted to use minimization techniques." Click here for the
complete decision.

(The value of videotaping an interrogation
– minimization)
In Commonwealth v. Chaperon (2010)
the Appeals Court of Massachusetts upheld the admission of the defendant's
confession after reviewing the videotape of the interrogation.In their decision the court stated that,
"The defendant claims that, after administering Miranda warnings,
the detectives undermined them by promising him that they would not place him
under arrest if he admitted to criminal conduct. This claim is unfounded. The
detectives told the defendant (truthfully, as it turns out) that whatever he
might say during the encounter, he would not be arrested that day. At the
outset of the interview (which is neither included in the transcript supplied
by the defendant nor mentioned in either party's brief), Detective Eason
stated, "You're not being arrested tonight, but I still have to read you
your [Miranda] rights" (emphasis added). Later statements were to
the same effect-that whatever the defendant might say he would not be arrested
on the spot. The detectives did not state or imply that, regardless of the
warnings he received, his confession would insulate him from arrest. Cf.
Commonwealth v. Shine, 398 Mass. 641, 650-651 (1986).

While the detectives engaged in a form of "minimization" (repeatedly
stating that people will forgive a person who made a mistake, but will not
forgive a liar), and also told the defendant that he should get therapy, these
features of the interrogation do not preclude a finding that the defendant's
statements were voluntary; rather, they are to be considered as part of the
totality of circumstances.

Viewed in that way, we agree with the motion judge that the manner in which the
defendant was questioned did not render the defendant's statements involuntary.
Significantly, throughout the interrogation, the defendant remained composed
and did not seek to terminate the interview; he carefully calibrated his
answers, offering explanations (both plausible and implausible) to deflect
suspicion; and, despite eventually admitting that he had touched or rubbed the
victim's vagina on a number of occasions, he steadfastly denied that he ever
penetrated her with his fingers as she alleged.

Regarding the
technique of minimizing the moral seriousness of the offense the Supreme Court
of Canada stated the following:

"There
is nothing problematic or objectionable about police, when questioning
suspects, in downplaying or minimizing the moral culpability of their
alleged criminal activity. I find there was nothing improper in these and
other similar transcript examples where [the detective] minimized [the
accused's] moral responsibility." R v. Oickle[2000] 2 S.C.R. 3

(The statement "that things would go better for
[defendant] if he spoke," did not serve to overbear defendant's will or render
it impossible for him to make a rational, informed choice whether to confess)

In US v Huggins-McLean
(January 2015) the US District Court, S.D. Georgia, rejected th defendants
claim that his confession was coerced because he was denied a call to hi
smother, and because the police made a promise of leniency. From the court's
opinion:

"Defendant concedes that coercive police activity is a necessary predicate
to the finding that a confession is not 'voluntary,' and stated the basis for
such a claim in this case was "the issue with respect to Mr.
Huggins-McLean attempting to call his mother, who is an attorney, and being
told that he could not do so and, Number 2, the statement to Mr. Huggins-McLean
that if he speaks things will go well for him.

The first contention-that the agents' refusal to allow defendant to place a
phone call to his mother constituted a coercive tactic--finds no support in the
case law. A well-educated adult who has been seized by the police on suspicion
of criminal activity simply has no right to call his mother before deciding
whether to submit to police questioning. The fact that defendant's mother
happens to be a lawyer is of no importance to the voluntariness analysis, for
defendant never indicated that he wanted to speak to his mother as his
attorney or seek her assistance in obtaining counsel, just that he wanted
to let her know that he had arrived in Savannah.

Defendant next contends that the agents improperly induced him to confess by
indicating that it would be better for him to speak and provide a
"truthful and honest" statement about his criminal activities... The
Constitution prohibits the police from extracting a confession from a suspect
through any coercive interrogation technique--be it physical abuse or psychological
pressure--that is sufficient to overbear the suspect's will and critically
impair his capacity for self-determination... A confession is involuntary,
therefore, if made in response to a false promise that it will not be
used against the suspect, or that he will not be prosecuted or will face a
lesser charge and punishment if he cooperates with the police.

The federal courts, however, "have consistently declined to hold
categorically that a suspect's statements are involuntary simply because police
deceptively highlight the positive aspects of confession." ... Statements
which focus on the possible benefits of cooperation, but which fail to explain
that a suspect's cooperation may not always be to his advantage, are "the
sort of minor fraud that the cases allow."

The Fourth Circuit has held that "the cryptic promise that 'things would
go easier on [the suspect]' if he confessed [did not] amount[ ] to
unconstitutional coercion."... The agents' assurance in this case that
"that things would go better for [defendant] if he spoke," likewise
did not serve to overbear defendant's will or render it impossible for him to
make a rational, informed choice whether to confess. While this advice may
have been misleading under the particular circumstances of this case (an issue
that has yet to be determined), it did not amount "to an outright promise
that nothing [defendant] said would ever be used against him."

Under the totality of the circumstances, including defendant's individual
characteristics and the overall nature of the interrogation, the agents did not
deprive defendant of the ability to make a rational choice between exercising
or waiving his Fifth Amendment privilege against self-incrimination, either by
refusing to allow defendant to let his mother know that he had arrived safely
in Savannah or by opining that it would be better for defendant to cooperate.

(Investigator's statement that felony murder would
receive a lesser sentence than premeditated murder did not render confession
involuntary)

In State v. Turner (May 2014)
the Nebraska Supreme Court held that misinformation by police officers during
the defendant's interview that felony murder would receive a lesser sentence
than premeditated murder did not overcome defendant's will so as to render his
confession involuntary based on purported promises of leniency. From the
court's opinion:

"Turner argues that his confession was involuntary because it was induced
by an implied promise that he would receive a lesser sentence if he confessed
that the shooting was accidental. As evidence of this implied promise, he
points to Ficenec's statements that it made "a big difference" how
and why the shooting occurred and to Krause's statement that the possible
penalty could be 1 to 10 years' imprisonment if the shooting was accidental. He
claims that these statements constituted an implied promise of leniency which
overcame his will and caused him to confess. He further argues that the
officers' statements were deceptive because first degree murder encompasses
felony murder--which does not require a showing of malice, intent, or
premeditation.

Turner is correct in his assertion that the officers deceived him during the
course of the interview at the parole office. Ficenec's statements as to there
being "a big difference" how and why the shooting occurred, and
specifically Krause's statement that Turner could get 1 to 10 years'
imprisonment if the shooting was accidental, incorrectly indicated that felony
murder would receive a lesser sentence than premeditated murder...

... We have previously noted that a deceptive statement regarding possible
sentences is only one of several factors to be considered. In State v.
Thomas, we determined that the defendant's confession was voluntary and not
caused by misinformation regarding possible sentences due to the presence of
three factors. These factors included that (1) the officers returned to
previous themes between the discussion of possible penalties and the
defendant's confession, (2) the defendant indicated a knowledge that he could
receive life imprisonment for the crime both before and after his confession,
and (3) the confession occurred after an officer indicated that he did not know
what sentence would be imposed.

... As in Thomas, Turner's confession did not follow the discussion in which
the officers misrepresented that a lesser sentence would be imposed for felony
murder. Rather, his confession was immediately preceded by the officers' return
to the prior theme of Turner not being a bad, evil person; Krause's exhortation
to "do the right thing"; and the colloquy regarding Turner's belief
in God and the fate of his soul. Thus, the dialog immediately preceding
Turner's confession supports the conclusion that his confession was primarily
motivated by remorse and a desire to do the right thing--not to receive a
lesser sentence.

As to the second factor we identified in Thomas, Turner indicated both before
and after his confession that he was aware he could receive a sentence of life
imprisonment. Before Turner confessed at the parole office, he stated,
"Man, I'm going to get life for this shit." And after he confessed
and was transferred to the police department, Turner stated to Coleman,
"I'm about to get like, life." Thus, this factor indicates that Turner
did not believe his confession precluded him from receiving life imprisonment.

Finally, like the defendant in Thomas, Turner confessed after officers stated
that they did not know what sentence would be imposed. In response to Turner's
statement, "I'm going to get a hundred years," Ficenec replied,
"I can't tell you what the potential penalty could be. I mean I'm not
going to bullshit you. Could you potentially get life? Is that a possibility? I
mean, I'm not a judge, I'm not a prosecutor." And during the colloquy
immediately preceding Turner's confession, Krause stated, "I don't know,
okay?" in response to Turner's assertion that he "might be in jail
for a long-ass time." Thus, although they incorrectly indicated that
felony murder would receive a lesser sentence, the officers made no
representations as to what sentence Turner would receive if convicted. This
factor supports the conclusion that Turner's confession was not motivated by a
belief that he would receive a particular sentence.Click here for the
complete decision.

(Statement to the effect that the defendant had a
"chance to reduce the potential charges or sentencing" if he showed
remorse and confessed did not render the confession inadmissible)

In US v. Takai (2013) the US
District Court, D. Utah, the court found that statements to the effect that the
defendant had a "chance to reduce the potential charges or
sentencing" if he showed remorse and confessed did not render the
confession inadmissible. In their opinion the court stated that,
"Defendant's allegations of coercive tactics in the second interview
revolve mainly around Agent Quirk and Detective Coats' various statements
promising that they would speak to prosecutors to recommend leniency if he ...
would come clean and show remorse. The transcript of the interview reveals
numerous such statements.

In the interview, Agent Quirk and Detective Coats repeatedly made statements to
the effect that there was a "chance to reduce the potential charges or
sentencing" if he showed remorse and confessed... The basis of such
statements was that the investigators would recommend leniency to the
prosecutors. And both Detective Coats and Agent Quirk repeatedly clarified that
they did not have the authority to make promises, control the charges, the
sentencing, or even whether the case would be filed in state or federal court,
though they did encourage Defendant by saying that cooperation might help...
This court held in.... that in an interrogation, officers may "speculate
that such cooperation will have a positive effect" as long as they do not
"go beyond limited assurances." .... The court finds that Agent Quirk
and Detective Coats' statements, though to some extent "promises" (but
not of leniency; rather, promises to speak to the prosecutors to recommend
leniency), were carefully hedged to avoid going "beyond limited
assurances." ...Thus, the court finds there was no police misconduct in
this interview that would justify looking further into specific characteristics
of Defendant that could affect the voluntariness of his confessions where
coercive police conduct has been found. Click
here for the complete decision.

(What constitutes a promise of leniency?)

In Ozuna v. Texas (2011) the Court of Appeals of Texas,
Austin, found that "For a promise to render a confession invalid, it must be
positive, made or sanctioned by someone in authority, and of such an
influential nature that it would cause a defendant to speak
untruthfully....General offers to help a defendant are not likely to induce an
accused to make an untruthful statement, and therefore will not invalidate a
confession. Similarly, general statements made to a suspect that a confession
may sometimes result in leniency do not render a confession involuntary."
Click here for the complete decision.

(If you do not tell the truth, "Life has ended" does
not constitute a threat)

In People v. Cardenas (May 2011) the Sixth District Court
of Appeal, California, says that it does not constitute a threat. In
their opinion the court stated that, "The sergeant's testimony indicated that
the remark was neither a threat of harsher punishment if defendant Plancarte
did not confess to robbery nor a promise of greater leniency if he did. Rather,
the gist of the remark appears to be that, absent the "truth," life as
defendant Plancarte knew it would end, which would seem to imply that the police
already had a convincing case against defendant Plancarte unless the "true"
facts put things in a different light. Exaggeration of the strength of the
evidence against a defendant during interrogation does not necessarily render a
confession involuntary... Mere advice or exhortation by the police that it would
be better for the accused to tell the truth, when unaccompanied by either a
threat or a promise does not ... make a subsequent confession involuntary. Click here for the complete decision.

(The detective's
statement that "[i]f you admit to things, you make mistakes, you made a bad
choice; but if you deny this, in my book, you are a criminal," was merely moral
urging...not a promise of leniency)

In Garcia v. State (2011) the District Court of Appeal of
Florida found that "The detective's statement that "[i]f you admit to things,
you make mistakes, you made a bad choice; but if you deny this, in my book, you
are a criminal," was merely moral urging." They stated that, "The
constitution does not bar the use ... of any statements that could be construed
as a threat or promise, but only those which constitute outrageous behavior and
which in fact induce a confession." There must also be a causal nexus between
the improper conduct or questioning and the confession. A confession is not
involuntary if officers do nothing more than "encourage or request that person
to tell the truth."

"We do
not reach the question of whether the detective's promise was "outrageous,"
because the detective's statements do not constitute or suggest a promise of
leniency. The detective's statement that "[i]f you admit to things, you make
mistakes, you made a bad choice; but if you deny this, in my book, you are a
criminal," was merely moral urging. "Encourag[ing] or request[ing][a] person to
tell the truth" does not result in an involuntary confession."Click here for the complete decision.

(The statements, "I have
no intention of putting you in jail tonight" and "If you have a problem, we can
help you.... I promise you, I will do everything I can to help you." were not
promises of leniency.)

In State v. Leeson (2011) the Court of Appeals of New
Mexico upheld the lower courts decision to admit the defendants confessions.
On appeal the defendant had argued that his confession was involuntary
because it was elicited by false or implied promises and threats. In
examining this issue the court made the following observations:

"The
court quoted Detective Kohler as having stated, "[r]ight now, no matter what
happens, no matter what you tell me, and I swear to this, I have no intentions
of putting you in jail tonight." The express promise did
not concern long term leniency, only the avoidance of jail that night and
provided no incentive or disincentive to make admissions. The district court
noted that the detective kept this promise, even though Defendant made certain
admissions.

"The
district court also concluded that Defendant could have inferred an implied
promise to get help for him if he was cooperative. At the hearing on his
motion, Defendant pointed to the following statements Detective Kohler made in
the first interview as implied promises. "If you have a problem, we can help
you.... I promise you, I will do everything I can to help you.... That might be
something we can help you with." We addressed similar statements regarding
possible treatment in State v. Lobato, 2006–NMCA–051, P
1, 139 N.M. 431, 134 P.3d 122, where the defendant was charged with
criminal sexual penetration of a minor. We agreed that the statements in that
case gave the impression that the defendant would get treatment if he
confessed, but we did not find any promise that the defendant would get
treatment instead of prison time or would get a lesser sentence of
imprisonment....We concluded that the defendant's confession was not rendered
involuntary by the officer's discussion of possible treatment. We
reach the same conclusion here."Click here for the complete decision.

(The statement "...you
might be charged with one thing you know there's plea agreements and things
they can work out a deal" is not a promise of leniency)

In Sims v. State (2011) the Court of Appeals of Indiana
upheld the lower court's opinion that this statement was not a promise of
leniency. The full statement that was at issue was the following:

"But
... don't be silly and lie about this I mean because even though you might be
charged with one thing you know there's plea agreements and things they can
work out a deal with you but don't throw away your entire life because that
jury is going to be pi* *ed and that judge is gonna [be] pi* *ed if you go in
lying in Court. They're gonna say [he] shows no remorse, he doesn't feel bad
about what happened and whether you cry or not I mean that's not ... that's not
what remorse is about. But doing the right thing here and telling the truth
what happened that's ... that's what you need to do."

The
court found that, "Here, however, Detective Mayhew neither promised Sims his
punishment would be mitigated nor misstated the law. Rather, the detective
merely told Sims that it was in his best interest to be honest and tell the
real story, and that plea agreements and deals were available. The Indiana
Supreme Court has consistently held that vague and indefinite statements by the
police about it being in the best interest of the defendant for him to tell the
real story or cooperate with the police, such as the one in this case, are not
sufficient inducements to render a subsequent confession inadmissible."Click here for the complete decision.

(Telling the suspect the nature of the charge
- capital murder - and that he can help himself by telling the truth does not
render the confession inadmissible)
In Smith v. State (2010) the
Court of Criminal Appeals of Texas upheld the admissibility of the defendants'
confession even though he was told by the interrogator that "I'll get you
the death penalty or you can tell me the truth and help yourself."

The Appeals Court found that, "Rogge's statements, which the appellant
deems a threat, "offensive to due process, and [ sic ] draws a line the
police may never cross, not even with a suspect who has been warned and has
expressed a willingness to speak to them," do not affirmatively promise
that the appellant would not get the death penalty if he confessed. At best,
the comments convey the understanding that the appellant would most likely get
the death penalty if he were found to be lying; if he told the truth, he would
have a chance at a life sentence. When the appellant stated that he was trying
to cooperate with Detective Rogge because it was "probably" the only
thing that would save him from the death penalty, his statement did not
inherently mean that he was being offered a deal with the police for a life
sentence. In fact, when the appellant testified at the suppression hearing, he
did not even say that Rogge had promised him anything or that he felt coerced
to make his statement."Click here for the
complete decision.

(The statement "we are here to listen and
then to help you out," is not an implied promise of leniency)
In People v. Vance(2010)
the Court of Appeal, First District, California upheld the trial court's opinion
that the statement "we are here to listen and then to help you out,"
was not an implied promise of leniency. The Appeals Court stated that,
"While defendant reads an implied promise of leniency into Officer Kelly's
statement that "we are here to listen and then to help you out," and
Officer Norton's statement that "the court ... wants to know what the real
story is and you're the only one that can provide that," our review of the
videotape reveals that the only benefits promised by the officers was the peace
of mind defendant and others would have after he did the right thing and gave
his side of the story. That is not coercion.

The court's decision went on to point out that "Mere advice or exhortation
by the police that it would be better for the accused to tell the truth, when
unaccompanied by either a threat or a promise, does not ... make a subsequent
confession involuntary"; People v. Jimenez (1978) 21 Cal.3d 595,
611-612, 147 Cal.Rptr. 172, 580 P.2d 672 [" '[when] the benefit pointed
out by the police to a suspect is merely that which flows naturally from a
truthful and honest course of conduct,' the subsequent statement will not be
considered involuntarily made"]; People v. Andersen (1980) 101
Cal.App.3d 563, 578, 161 Cal.Rptr. 707.) The brief and bland references upon
which defendant has seized do not push this case over the forbidden line of
promised threats or vowed leniency (see People v. Ray (1996) 13 Cal.4th
313, 340, 52 Cal.Rptr.2d 296, 914 P.2d 846), certainly not within the context
of an interview that lasted more than three hours."Click here for the
complete decision.

("We are here to help you, we are the
only ones who can help you." Is not a promise of leniency)

In Redd
v. State (2009) the Court of Appeals of Texas, Houston, upheld the
trial courts decision to admit the defendant's statements into evidence. On
appeal the defendant claimed that his "will was overborne by false
promises and threats" - specifically claiming that the investigators told
him that "(1) he would not get life in prison if he cooperated; (2) they
were there to help him; and (3) they were the only ones who could help
him."

The Appeals court ruled that the "Appellant does not specify the exact
promises made by Elizondo and Dew that he assails. General statements by an
officer that he is there to help defendant and is the only one who can help
defendant do not indicate the "if-then" relationship required to
establish a promise."

Also, the court wrote that "Specifically, appellant argues that he was
induced to confess by the following statement made by Elizondo: "I
guarantee that you're not going to do life [in prison] like he is. Or who
ever"..... Elizondo's "guarantee" was part of a larger statement
in which Elizondo attempted to persuade appellant to tell his "side of the
story" before Isler was detained and blamed everything on
appellant."Click here for the
complete decision.

(Statements like "try to get something
going"; I want to help you put your "best foot forward" do not
constitute promises of leniency.Statements like "being the guy that's not being completely
honest" and being the "odd-man out" and "left out in the
cold," do not imply a threat or dire consequences.)

In People
v. Atencio (2010), the Court of Appeal, Third District, California
found that the trial court properly admitted the defendant's confession,
stating that, "Having examined the interviews, we discern no implied
threats or promises of leniency. As defendant points out, detectives told him
they were "trying to get something going" for him and trying to
"help" him to put his "best foot forward" by providing a
statement that honestly explained "why all this bad shit happened"
and showed "some remorse" for Rapp's death. However, this cannot be
construed as an implied promise of leniency. In the context of the interview,
the detectives were doing nothing more than exhorting defendant to tell the
truth and permissibly offering to help him explain his side of the story to the
district attorney. (See People v. Ramos, supra, 121 Cal.App.4th at p. 1204
["no improper promise of leniency" where the detective "promised
only to present evidence of [defendant's] cooperation to the district
attorney"].) The detectives "did not suggest they could influence the
decisions of the district attorney," but simply informed defendant that
providing an honest account of events might be beneficial in an unspecified
way. ( People v. Carrington, supra, 47 Cal.4th at p. 174.) Indeed, immediately
before he confessed to the murder plot, the detectives specifically told him
the district attorney would be responsible for charging him and there probably
was not a lot of "movement," "if any," as far as which
crimes would be charged against him. Consequently, offering to help him explain
his side of the story to the district attorney cannot be construed as an
implied promise of leniency.

"Defendant also faults the detectives for warning him against "being
the guy that's not being completely honest" and being the "odd-man
out" and "left out in the cold," and for telling him the only
way he could help himself was to tell them what happened. According to
defendant, these statements constituted a threat that he was in a hopeless
situation and would suffer dire consequences unless he confessed. He also
complains the statements were repeated after he was told Krauter and Medina had
confessed to the murder plot. Thus, he suggests, "the threat that [he]
would be 'left out in the cold' if he did not confess to the murder plan like
the others ha[d] done was meant to imply that all of the other participants who
freely admitted participation in the murder plot would be receiving a more
favorable outcome, and that he would be denied a similar benefit because of his
refusal to admit the plan to commit murder."

"On the contrary, far from threatening defendant, the detectives were
simply explaining the natural consequences that would flow from his lying to
them, should his coconspirators suffer a crisis of conscience and confess. We
have no doubt that, when those words of the detectives were repeated after they
informed defendant that Krauter and Medina had confessed, the words carried
greater weight in defendant's mind and likely led to the confession that
followed immediately. But the fact that a strategy was effective does not make
it unconstitutional. "No constitutional principle forbids the suggestion
by authorities that it is worse for a defendant to lie in light of overwhelming
incriminating evidence." ( People v. Carrington, supra, 47 Cal.4th at p.
174.) This is all that the detectives did in this case. They did not, as
defendant claims, imply that Krauter and Medina would receive a more favorable
outcome because they confessed, or that defendant would be denied a favorable
outcome unless he also confessed."Click
here for the complete decision.

(Court rejects the claim that a coercive
environment was created when the investigators mentioned the gravity of the
offense and the possibility of a lengthy prison sentence and then told the
suspect that if he cooperated he might benefit)

In US
v. Dominguez-Gabriel (2010) the United States District Court, S.D. New
York, upheld the trial court's decision to admit the defendant's incriminating
statements even though he claimed that the agents created a coercive
environment when they mentioned the gravity of the offense and the possibility
of a lengthy prison sentence and then told him that if he cooperated he might benefit.

From the court's opinion:

"Finally, the Defendant complains that the agents created a coercive
environment when they mentioned the gravity of the offense and the possibility
of a lengthy prison sentence and then told him that if he cooperated he might
benefit. But the Second Circuit has made clear that simply stating that
cooperation may help a defendant facing a lengthy sentence is not enough to
render a statement subsequently made involuntary. United States v. Gaines, 295
F.3d 293, 299 (2d Cir.2002); United States v. Ruggles, 70 F.3d 262, 265 (2d
Cir.1995) ("Certainly, statements to the effect that it would be to a
suspect's benefit to cooperate are not improperly coercive."). And when
the agents told the Defendant that he had been arrested on a serious offense
for which he might face a lengthy jail sentence, they were simply informing him
of the facts of his situation. See United States v. Tutino, 883 F.2d 1125, 1138
(2d Cir.1989) (holding that once a suspect "had been advised of his rights,
the agents were free to discuss with him the evidence against him and the
reasons why he should cooperate"); Green v. Scully, 850 F.2d 894, 903-04
(2d Cir.1988) (holding that police officials' references to the electric chair,
while improper, did not render a confession involuntary); United States v.
Pomares, 499 F.2d 1220, 1222 (2d Cir.1974) (holding that "[i]t was quite
proper in the course of such discussion to mention the situation which Pomares
faced," including informing the defendant he faced heavy penalties for
drug smuggling).

(The interrogator's implication of leniency in
exchange for cooperation is not coercive)

In Lewis v. Commonwealth(2009)
the Court of Appeals of Virginia, Richmond the court upheld the admission of
the defendant's confession. Specifically, they stated that "according to
Lewis' argument, he was coerced to confess because Detective Byrd implied that
Lewis would benefit by cooperating, he implied that cooperating would help
Lewis see his child, he implied that Lewis' continued cooperation could earn
leniency in sentencing, and he told Lewis that a videotape showed
"everything."

Detective Byrd implied on several occasions that cooperating might help him
obtain some leniency in the future. We held in Washington that the officer's
implication of leniency in exchange for cooperation is not coercive. 43 Va.App.
at 304, 597 S.E.2d at 262 (The officer's statement was not an actual promise of
leniency, and the officer never claimed to have the power to affect the
decision of the Commonwealth's Attorney's office.). Here, Detective Byrd never
guaranteed Lewis that, by cooperating, he would receive any benefit. The
detective did not make any promises to Lewis, and he never indicated that he
had authority to dispense leniency in prosecution, sentencing, or visitation
rights while in prison. Therefore, according to Washington, Detective Byrd's
implication that cooperation might help Lewis in the future is not coercive.
Moreover, Detective Byrd's implications that cooperating would help Lewis see
his child and gain leniency in sentencing is similarly not coercive." Click here for the complete
decision.

(Telling the suspect that if he tells the
truth it could be in his benefit to do so and exaggerating the strength of the
evidence against him does not render a confession involuntary)

In People v. Garcia (2009)
the Court of Appeal, Second District, Division 2, California the court upholds
the admissibility of the defendant's confession. In this case the court found
that "The record negates appellant's contention that the officers made an
implied promise of leniency in charging or punishing appellant. During the
interview, one of the officers explained to appellant that he could be tried as
a juvenile or as an adult, but added: " I can't make you any promises and
I wouldn't do that but we need to know the truth and we need to know what you
were thinking in your heart." (Italics added.) When appellant asked the
officers what would happen to him, the officers told him: "You're going to
be charged with the murder." They went on to tell him that although they
would present his case to the juvenile system, someone other than the officers
would make a decision whether he would be tried as an adult. In our view, there
was no express or implied promise of leniency.

The officers certainly urged appellant to tell the truth and represented to
appellant that it could be in his benefit to do so. These exhortations,
however, were within the permissible bounds of telling appellant that it would
be in his advantage to be truthful because the officers did not attach a promise
of leniency with the exhortations. ( Jimenez, supra, 21 Cal.3d at p. 611
["mere advice or exhortation by the police that it would be better for the
accused to tell the truth when unaccompanied by either a threat or a promise
does not render a subsequent confession involuntary"]; People v. Hill
(1967) 66 Cal.2d 536, 549["[w]hen the benefit pointed out by the police to
a suspect is merely that which flows naturally from a truthful and honest
course of conduct, we can perceive nothing improper in such police activity"];
In re Anthony J., supra, 107 Cal.App.3d at p. 969 [15 year old defendant's
confession held voluntary where officers told defendant that if he told the
truth, the officers would tell the court that defendant was cooperative and
would play the taped confession to the court " 'to show how cooperative
the minor had been' "].)

It is true, as appellant points out, that the officers in this case exaggerated
the nature of the eyewitness testimony against appellant. During the
interrogation, the officers told appellant that witnesses had identified
appellant as walking up to the victim, shooting the victim, running toward a
van driven by his brother and leaving in that van. In fact, the two
eyewitnesses for the prosecution testified only that the person they saw
running after the gunshots shared the same physical build as appellant.
"Numerous California decisions confirm that deception does not necessarily
invalidate a confession." ( People v. Thompson (1990) 50 Cal.3d
134, 167.) Courts have upheld the admission of a confession where the officer's
" 'deception was not of a type reasonably likely to procure an untrue
statement.' [Citations.]" ( Ibid., citing In re Walker (1974) 10 Cal.3d
764 [upholding confession where officers deceptively told defendant that he
would die before he reached the hospital]; People v. Watkins (1970) 6
Cal.App.3d 119 [upholding confession where officers deceptively told defendant
that his fingerprints were found on the getaway car].)

In our view, the deceptions employed by the officers in this case were not of
the type reasonably likely to procure an untrue statement from appellant."
Click
here for the complete decision.

("I'm
going to help you to get out of here, I'm going to help you with the
detective...." was not a promise of leniency)

In Briones
v. State (2008) the Appellant claimed
he confessed because the interrogator promised to help him, and that he (appellant)
thought the interrogator would help him go free. The interrogator did
make the following statements to the defendant: ""I'm going to help
you to get out of here, I'm going to help you with the detective.... [W]ith the
truth, everything will come out right.... [A]t one point in your life, you need
to trust someone.... I'm giving you my word as a man.... You need to speak with
me and tell me everything, and we'll solve all of this." A short time
thereafter, Colunga added: "I will call the detective, call her here. You
and I will talk to her and we'll explain to her why.... You have a disease....
But we need to help you." The Court of Appeals found that "These
generalized statements of help and comment on the power of truth, however, do
not constitute the kind of "if-then ... deal, bargain, agreement,
exchange, or contingency" that is of such a nature to cause a suspect to
speak untruthfully." Click here for the
complete opinion.

(Court rejects the suggestion that a loss of
visitation rights was coercive)
In Holland v. Rivard (March 2014) the US District Court, E.D. Michigan,
upheld the lower court's decision to admit the defendant's incriminating
statements. From the court's opinion:

The Michigan Court of Appeals rejected the petitioner's claim that a promise
induced his confession and found it to be made voluntarily:

The existence of a promise is just one of the circumstances to consider in
examining whether, under the totality of the circumstances, the statement was
made voluntarily.... Raupp testified that defendant first introduced the topic
of speaking with his family, although defendant claims that Raupp brought it
up. We find no basis to upset the trial court's determination that Raupp's
testimony was more credible on this issue.... Considering that Raupp had no knowledge
of defendant's other crimes before defendant told him, Raupp had no reason to
promise defendant anything in order to obtain a confession. In fact, Raupp was
unaware that there was even a possibility of obtaining a confession or
confessions. In addition, Raupp did not have the authority to grant defendant's
request to see his family. To the extent that there was any promise, it was
merely Raupp's promise to pass along defendant's request to see family to
Raupp's supervisors. Accordingly, the record does not support a finding that
defendant was induced or coerced into making the incriminating statements, and
the trial court did not err in holding that defendant's incriminating
statements were not improperly induced by a promise.

The Supreme Court has held that a combination of threats and promises may be
sufficient to overbear an interviewee's will and constitute impermissible
coercion.... The circumstances in Lynumn are distinguishable from those
presented in this case. In Lynumn, the defendant was interrogated in her
apartment while surrounded by three police officers and a police informant. The
officers threatened that if she did not cooperate, state financial aid for her
infant children would be cut off and the children would be taken from her. In this
case, the petitioner was not facing threats to the physical and financial
well-being of his minor children, or, for that matter, of his mother and
fiancee. His desire to prepare his loved ones for his planned confession does
not render the confession involuntary or the police conduct coercive.
Individuals confess for a host of reasons. Law enforcement officers are not
required to attempt to parse out or identify an individual's motivations for
testifying.... Here, there is no indication that the petitioner was threatened
in any way. Access to loved ones may certainly be reasonably restricted during
incarceration. There is no indication that police threatened the petitioner
with any loss of visitation unrelated to the fact of his imprisonment.

(Invocation of defendant's children as a
method to get a confession ruled not coercive)
In State v. Arriaga-Luna (2013)
the Supreme Court of Utah reversed the lower court's decision that the
defendant's confession was coerced because of the interrogating officers'
"invocation of Mr. Arriaga-Luna's children as a method to get a
confession." From their opinion the Supreme Court stated the following:

"As the U.S. Supreme Court has long held, "certain interrogation
techniques, either in isolation or as applied to the unique character of a
particular suspect, are so offensive to a civilized system of justice that they
must be condemned," and confessions resulting from them are
inadmissible.... Threats or promises render a confession involuntary if, in
light of the totality of the circumstances, they overcome a defendant's free
will.

In Lynumn v. Illinois ... and United States v. Tingle... the
defendants' confessions were held to have been coerced because the
interrogating officers made threats regarding the defendants' children. The
police officers in Lynumn encircled a single mother and told her that she would
not see her children again unless she admitted to being a drug dealer.... The
officers also told Lynumn that her children's government assistance would be
withdrawn unless she confessed.... The U.S. Supreme Court held that the threats
regarding Lynumn's children, viewed in light of her lack of experience with
criminal law and lack of counsel, overcame her free will and produced an
involuntary confession....

In Tingle, the Ninth Circuit held more broadly that "[w]hen law
enforcement officers deliberately prey upon the maternal instinct and inculcate
fear in a mother that she will not see her child in order to elicit
'cooperation,' they exert ... 'improper influence' "... police
interrogated a young mother who was suspected of bank robbery and told her that
she "would not see [her] child for a while if she went to prison."

Although we recognize that the intense loyalty and emotion present in most
parent-child relationships does provide an opportunity for coercion, we do not
adopt any per se rule regarding the effect of references to a defendant's
children on the voluntariness of a confession. The ultimate test in any case
involving the voluntariness of a confession is whether the defendant's will has
been overcome under the totality of the circumstances.

The detectives appealed to Mr. Arriaga-Luna's love for his daughters in three
primary ways. First, during the initial interview Detective Arenaz told Mr.
Arriaga-Luna, "You're not gonna see [your children]. You're ... you're
gonna be locked in prison the rest of your life." We have held that
officers may not threaten a harsher punishment if a defendant does not confess
or promise a lighter punishment if the defendant does confess.... Here,
Detective Arenaz made the statements while attempting to coax Mr. Arriaga-Luna
to implicate his brother or say that the killing was accidental--not while
persuading him to confess to murder. Furthermore, these statements were not
improper threats because Mr. Arriaga-Luna in fact faced prison time if found
guilty of murder, and separation from one's children is a natural consequence
of being in prison. Detective Arenaz did not suggest that Mr. Arriaga-Luna
would be able to see his children only if he confessed.

Mr. Arriaga-Luna argues that Detective Arenaz's statement was a veiled,
indirect threat that he must cooperate in order to see his children. We
recognize that implicit threats can constitute psychological coercion and
overcome a defendant's free will. However, here, the context of the detective's
statement clarifies that the statements were not implicit threats but rather
factual communications that if Mr. Arriaga-Luna implicated his brother and his
brother was found to be the sole murderer, Mr. Arriaga-Luna would not "be
locked in prison for the rest of [his] life." Similarly, if the killing
were entirely accidental, Mr. Arriaga-Luna would likely be set free. We also
note that Mr. Arriaga-Luna did not confess during this interview, which
suggests that the officer's statements did not overcome his free will....

In the second interrogation two days later, Detective Hamideh employed the
false-friend technique. Among other things, Detective Hamideh told Mr.
Arriaga-Luna, "But yes, I can bring resources there so that [your
daughters] can be educated and break the cycle here."

When defendants are concerned for the safety and welfare of their families, law
enforcement can inform defendants of public and charitable resources. However,
officers should limit themselves to factual statements and not imply that aid
for defendants' families is contingent on a confession. Here, Detective Hamideh
strayed close to the line by making a personal offer to help Mr. Arriaga-Luna
when he said "I can bring resources." However, it is clear from the
full transcript that the officer made the statement about resources in response
to Mr. Arriaga-Luna's inquiry about what would happen to his daughters, and not
in exchange for a confession.

Detective Hamideh also urged Mr. Arriaga-Luna to "give [your daughters]
hope that yes, I did what I did.... And I am going to take the time,
until--until that point.... And after that point--'Girls. We are going to be
together.' But free." Detective Hamideh also told Mr. Arriaga-Luna,
"I think that their daddy--their daddy can say, 'Yes. I did make a
mistake. But I have my dignity because I told the truth.' " Thus, the
detective urged him to confess to earn the respect of his daughters.

Such appeals to a defendant's sense of morality and responsibility are usually
non-coercive..... The totality of the circumstances show that Mr.
Arriaga-Luna's free will was not overborne. Accordingly, the trial court erred
in granting Mr. Arriaga-Luna's motion to suppress his confession. We reverse
and remand for further proceedings consistent with this opinion.Click
here for the complete decision.

(The interrogator's statement to the defendant
that he would get help for the defendant so that he could retain custody of his
children does not represent a promise that would nullify the confession –
detailed discussion of acceptable investigator statements and approaches)
In the case of State v. Farnsworth (2007) the Supreme Court of Minnesota
overruled the District Court that found that such a statement would render the
confession inadmissible. The Supreme Court stated:

Farnsworth argues that Schmitz's promise to get Farnsworth help so that
Farnsworth could retain custody of his children was so coercive that even an
innocent person would falsely admit to having sexually abused his children.
Farnsworth emphasizes that shortly after Schmitz promised him "help,"
he admitted that all of B.P.'s accusations were true without knowing what the
accusations were, and he argues that his willingness to do so illustrates the
coercive nature of the interview. The state argues that Schmitz's comments were
not so inherently coercive that an innocent person would confess to the crime
of child sex abuse. The state further contends that Schmitz's statements were
well within the parameters of acceptable officer behavior established by this
court...

The district court concluded that while many of the relevant factors outlined
in Jungbauer suggested that the confession was voluntary, Schmitz's statement
that he was trying to get Farnsworth "the best help [he could] so you can
have your kids still" was so inherently coercive that it would cause an
innocent person to confess, and that the confession was involuntary. After
reviewing the relevant factors, we conclude that Farnsworth's statement was
voluntary and the district court erred in ordering suppression...

We next conclude that the nature of the interrogation was not so coercive as to
render the confession involuntary. It is true that Schmitz did offer Farnsworth
help. But we have recognized that "the police must also be allowed to
encourage suspects to talk." State v. Merrill, 274 N.W.2d 99, 108
(Minn.1978). Moreover, we have acknowledged that the use of an empathic
approach when interviewing the suspect does not alone make a confession
involuntary. Pilcher, 472 N.W.2d at 333. In the context of the interview, many
of Schmitz's statements to Farnsworth, such as "Honesty is the best thing.
* * * I thought * * * I'll bring him in Monday and listen to his story and try
to get you some help because that's what you need," and "we are gonna
talk about what happened, why it happened, where it happened, when it happened
and then we are gonna get you some help," can be construed as efforts to
encourage conversation. We do not believe that Schmitz's statements, together
with the other circumstances surrounding the interview, were so coercive,
manipulative, or overpowering as to deprive Farnsworth of his ability to make
an unconstrained and wholly autonomous decision to speak. Schmitz's statements
contained no explicit or implied promises. Rather, Schmitz's statement implied
that people who commit child sex abuse need and should receive help. The nature
of the questioning does not suggest that Farnsworth was led to believe that
Schmitz occupied something other than an adversarial role as a questioner. In
fact, Farnsworth's own statements, indicating that he was going to jail and
going to lose custody of his children, illustrate Farnsworth's understanding of
Schmitz's role in the interview. See Pilcher, 472 N.W.2d at 333-34 (concluding
that the use of a sympathetic approach does not alone render a confession
involuntary where the defendant exhibited a wariness of police tactics).

We have held that offers of help do not make a statement involuntary as long as
the police have not implied that a confession may be given in lieu of criminal
prosecution. See State v. Thaggard, 527 N.W.2d 804, 812 (Minn.1995); State v.
Slowinski, 450 N.W.2d 107, 111-12 (Minn.1990). In Slowinski, we concluded that,
even though the arresting officers had improperly suggested that they had influence
with the county attorney to argue for psychiatric help, the defendant's
confession was voluntary because the officers did not promise the defendant
that he would receive psychiatric help instead of being sent to prison. 450
N.W.2d at 112. Similarly, in Thaggard, we upheld the voluntariness of a
confession because even though the defendant thought he might receive drug
treatment, he understood the Miranda warnings and knew that what he said could
be used against him, and the defendant was never told, nor did the officer
imply, that he would not be prosecuted if he gave a statement. 527 N.W.2d at
811-12. In contrast, in State v. Biron, we concluded that the confession was
involuntary where the defendant was expressly told that if he *375 cooperated
the police would have his case brought before juvenile court, but that if he
did not, they would not consider seeking juvenile court proceedings. 266 Minn.
272, 277-78, 282, 123 N.W.2d 392, 396, 399 (1963).

We conclude that in this case Schmitz's actions were more similar to those of
the officers in Slowinski and Thaggard than Biron. Schmitz's statements
contained no explicit or implied promises that Farnsworth would not be
prosecuted if he confessed, and Schmitz in no way indicated that he had special
influence with the district court. Moreover, nothing in Schmitz's statement
that he was trying to get Farnsworth "the best help [he could] so you can
have your kids still" indicated that if Farnsworth did not confess he
would certainly lose custody of his children, whereas if he did confess, he
would be able to retain custody. In fact, none of Schmitz's statements amounted
to "persuasive arguments calculated to induce a confession." Biron,
266 Minn. at 282, 123 N.W.2d at 399. Rather, Schmitz's general offers of help
seemed to be efforts to encourage Schmitz to talk-a tactic that we found
permissible in Merrill.Click here for the complete
decision.

(A statement to the defendant that his
children would be removed from the house unless he cooperated with the
investigation did not render the confession inadmissible)

In Stanton v. Commonwealth (2011)
the Supreme Court of Kentucky found that such a statement in the particular
circumstances was not problematic. The court stated the following:

"In sum, the Fourteenth Amendment prohibits interrogation tactics
calculated to overbear a suspect's will and to produce confessions involuntary
in the sense that the suspect's capacity to choose has been distorted and
critically impaired. The United States Supreme Court has held that threats to
deprive a parent of his or her child unless the parent "cooperates"
with investigators can run afoul of that prohibition. Here, however, unlike the
cases in which a parent suspect has been threatened with an ultimate and
speculative loss of a child and has been given to understand that
"cooperation" will avert that loss, Stanton was merely informed that
as matters stood the sexual abuse allegations against him would require those
involved in the investigation to seek a court order separating his children
from further contact with him, pending the investigation. This warning was not
a speculative threat of ultimate loss of Stanton's children, but an accurate
statement of what was apt to happen next in such cases, and as such it did not
amount to overreaching by the state agents involved and did not pressure
Stanton to such an extent as to impair his capacity to choose. Simply put, his
admissions were not coerced by improper conduct." Click
here for the complete decision.

(Court
rejects defendant's claim that his confession should have been suppressed
because he confessed in exchange for a promise of a family visit)
In State v. Maciel (2010) the
Court of Appeals of Arizona affirmed the trial court's decision to admit the
defendant's confession, even though he claimed that he confessed in return for
a promise of a family visit. In making their decision the court stated that,
"We find State v. McVay, 127 Ariz. 18, 617 P.2d 1134 (1980),
dispositive of defendant's arguments.

In McVay, our supreme court found two factors that undermined the defendant's
argument in that case that his confession was coerced by the investigating
officers' promise of his removal from an isolation cell. 127 Ariz. at 20, 617
P.2d at 1136. First, the court held that, when an alleged promise is couched in
terms of a "mere possibility or an opinion," it cannot be deemed a
sufficient "promise" so as to render a confession involuntary.
Second, the court concluded that when the defendant initiates the
"deal" or "promise" that was solicited in exchange for the
confession, that "promise" cannot be viewed as interfering with the
defendant's "exercise of a free volition in giving the confession."
Id. at 20-21, 617 P.2d at 1136-37. Those factors apply to undermine defendant's
arguments in the present case as well.

Here, the evidence shows that defendant initiated the "deal" when he,
unprompted, informed M.B. that he wanted to confess to a murder in exchange for
a family visit. Defendant did not dispute that he initiated the deal in his
motion to suppress. Having chosen to initiate a deal, "freely and voluntarily,"
defendant cannot now maintain that in accepting the deal he was the victim of
coercive influences."Click here for the
complete decision.

(A statement to the defendant that "if
his girlfriend was charged, and if she stayed in jail, there was a possibility
that social services could take her children away" was not coercive)

In State
v. Brock (2010) the Court of Appeals of Wisconsin upheld the admission
of the defendant's confession, even though he was told that "if his
girlfriend was charged, and if she stayed in jail, there was a possibility that
social services could take her children away." In their opinion the
Appeals Court stated that:

"Brock argues that Lynumn v. Illinois, 372 U.S. 528 (1963), requires
suppression of his statement. Lynumn held that threats that a mother's children
would be taken away from her unless she "cooperated" "must be
deemed not voluntary, but coerced." Id., 372 U.S. at 534. Lynumn is
inapposite because in that case the defendant was threatened with the loss of
her children if she did not confess. Id., 372 U.S at 530-534, 544. Here,
however, Panasiuk told Brock that if his girlfriend was charged, and if she
stayed in jail, there was a possibility that social services could take her
children away. Under established law, absent a showing that such a scenario was
impossible or feigned, the explanation of what could happen to a third person
does not make the defendant's confession coerced." Click
here for the complete decision.

("If you don't tell the truth you will go
to jail and lose your family" – not a threat)

In People
v. Montes (2009) the California Court of Appeal, Second District,
upheld the trial court's decision to admit the defendant's confession. On
appeal the defendant claimed that his confession was coerced as a result of
police threats and promises.

"Throughout the interview, the detectives encouraged Montes to tell the
truth. Otherwise, they warned him he could face a significant prison sentence
and lose his family. Among other things, they told him:

"Your wife will meet somebody else, somebody else will be at Christmas
with your daughters, there will be someone buying them gifts calling them Mija,
and sitting on their lap and being there for her Quincenera, and taking the
rest of it, they'll be calling him daddy, and you'll be in Pelican Bay, which
is about eight-nine hours drive north."

"But here's the deal. Here's what happens on my job now. Tomorrow I go
down to see the District Attorney and I tell the District Attorney, okay, I
picked up Jorge last night, uh I would say Jorge is a hard head, didn't want to
talk to me, which if [ sic ] your right I agree. Jorge doesn't want to talk to
me, um, so do what you got to do. And what they're going to do is they'll
research the case and what, what that scenario I just went down with you. I'll
say, well I talked to Jorge, I don't think Jorge is the shooter, I already told
you I don't think you're the shooter, okay? I think out of the people in that
car you were the least culpable of anybody.... I think Jorge got suckered into
something and he's kind of fucked. But I talked to Jorge, we explained
everything, he told me exactly what happened, we need to work with Jorge. Now,
I can't make any promises. No promises. I'll get you a promise. Actually right
now I'll get on the stand and say I don't think you're the shooter. That's what
I'm going to do.... But what I want to do is I want you to tell me what
happened out there, of why you were there. I'd much rather have you come to
court and say, okay, I was there, I drove the car, blah, blah, blah, blah,
blah, but I didn't do this shit because I didn't know this shit was going to
happen. I think you got suckered into this.... Now, what happened is, there are
different kind of charges here. You can go to jail for attempt ( sic ) murder,
(unintelligible) gun, which is a big charge, they can basically charge you with
an ADW, they can make you an accessory, um they can do this, I can't do this
... or the D.A. can say you know what? I'd rather have Jorge as a witness, make
him a witness. Okay? And, and use you there. But that's a deal that they would
have to work out between you and your attorney. That's between them, I can't do
that. I can only feed them the information on what to do here."

The Court of Appeal found that "Indeed, our review of the record shows
that neither the detectives nor the polygraph examiner made any promises of
leniency. To the contrary, Detective Smith repeatedly told Montes that he could
not make any promises and that it was up to the district attorney to decide
whether to make Montes a witness or to prosecute him. The only promise the
detectives made was to pass any information they gleaned from Montes to the
district attorney. The record also fails to show any threats by the detectives
that the district attorney would learn of his refusal to cooperate which would
result in some further harm to his case. We find no error in the trial court's
decision to allow the jury to hear Montes' admissions."Click here for the
complete decision.

(Court
rejects claim that threat to prosecute the defendant's sister coerced the
confession)

In Hill v. Virginia (2008) the
defendant claimed that he confessed because the interrogator threatened to prosecute his sister for possession of
the cocaine unless he claimed ownership. The Court of Appeals upheld the trial
court's decision that the confession was voluntary. The Appeals court stated,
in part, "Here, appellant's sister was already validly arrested pursuant to
probable cause. The question is whether a promise to forgo a valid prosecution
against a lawfully charged party is coercive. We find that appellant's desire
to extricate his sister from a valid arrest does not in itself render his
confession involuntary." Click here for the complete opinion.

(
Statement that the defendant needed to consider whether she wanted the chance
to be with her son somedaywas
not coercive)

In Gomez
v. State (2008) the "Appellant contends that Muniz [the interrogator] made comments regarding
appellant's son that were meant to induce appellant to confess.
Specifically, appellant contends that Muniz stated that it would be better for
appellant to cooperate, that appellant needed to consider whether she wanted
the chance to be with her son someday, and that she needed to take advantage of
the opportunity that the police were giving her to tell the truth." At one
point Muniz said "And all of that, what happened, unfortunately already
happened ... I'm just telling you what it is ... and that you accept
responsibility, and if you really love your child, the way you love him ... and
maybe you want a future with your son ... here is the opportunity." The
Court of Appeals concluded that "Muniz did not induce or attempt to induce
appellant into providing a confession in exchange for any promised
benefit." Click
here for the complete opinion.

(Statement
by interrogating officers that Child
Protective Services would have to remove defendant's son from her house unless
they could determine exactly what happened to her infant daughter was
not coercive)

In People v. Sanabria (2008) the
Supreme Court, Appellate Division, Second Department, New York found that the
statement by interrogating officers that Child Protective Services would have to remove defendant's son from her
house unless they could determine exactly what happened to her infant
daughter was not untrue or so fundamentally unfair as to deny defendant due
process or raise danger that she would falsely confess, and thus did not render
defendant's confession involuntary, where defendant was in custody for
grievously abusing her daughter, and Child Protective Services already had
obtained from Family Court order of protection directing defendant to stay away
from her home and her children. Click here for the
complete opinion.

(Police
may make truthful statements that impact a child or loved one without rendering
a defendant's statement involuntary)

In US v. Gorman (2008) "Gorman
claims that he would not have made any statements if police had not threatened
to take his child into state custody and he did not voluntarily waive his Miranda
rights. He asserts that police threatened to contact the Oklahoma Department of
Human Services ("DHS") and take his child into custody if he did not
talk to police. Based on his testimony, it appears that the alleged threat was
not made directly to defendant but, instead, by a female officer talking to
Carreiro in the front yard. He claims that the female officer made
"ignorant" and "rude" comments to Carreiro and Gorman's
child and told the child that everyone at the home would be "sleeping next
to strangers" that night. The female officer, Sokoloski, testified at the
suppression hearing. She admitted that she made statements to Carreiro about
taking the child into state custody because of the condition of the home, such
as the lack of any light source in the child's room, and the existence of
dangerous contraband and a weapon within reach of the child. She also testified
that she spoke to defendant after he had received a Miranda warning and
asked him about the poor condition of the home. She described her tone as firm,
but she felt it was necessary to say something. Both Sokoloski and Leatherman
testified that police have the authority to take a young child into protective
custody, and this was not an empty threat.

"Based on Sokoloski's and Leatherman's testimony, police could take
defendant's child into protective custody if they feared for the safety and
well-being of the child, and these were not idle threats. Police found a loaded
firearm within reach of a child and marijuana in an unlocked box on the floor.
Combined with other unsafe conditions in the home, such as the lack of any
light source in the child's room, police had a legitimate reason to be
concerned about the child's safety. Police may not threaten to remove a person
from a loved one for the purpose of coercing a confession. See United States v.
Tingle, 658 F.2d 1332, 1336-37 (9th Cir.1981). However, police may make
truthful statements that impact a child or loved one without rendering a
defendant's statement involuntary. United States v. Jones, 32 F.3d 1512, 1517
(11th Cir.1994) (statement by police that the defendant's girlfriend would also
be considered a suspect if the defendant refused to cooperate was truthful and
not a ground to suppress the defendant's statements as involuntary). The mere
fact that Sokoloski made statements about placing defendant's child in DHS custody
does not require suppression of defendant's statements claiming ownership of
the firearm and marijuana." Click here for the
complete opinion.

(Dr.
Richard Leo testimony that threatening to arrest a suspect's girlfriend or to
have the suspect's child removed in order to gain access to the suspect's
residence would qualify as coercive threats was rejected by the court)

In People v. Muratalla (2007) Dr. Richard Leo suggested
that the defendant's consent to search may have been given as the result of
improper police questioning techniques. The Court of Appeals decision stated
that "Leo opined that threatening to arrest a suspect's girlfriend or to
have the suspect's child removed in order to gain access to the suspect's
residence would qualify as coercive threats. Such threats, if used to gain
consent, would also affect the suspect's subsequent perceptions about whether
the suspect should make statements during an interrogation." The trial court
found that "under the totality of circumstances, Muratalla's consent to
search was voluntary. The court found that assuming the officers had discussed
the possibility of having DCFS take custody of the children and had handcuffed
Dorame in Muratalla's presence, such conduct did not induce Muratalla "to
do something that he otherwise might not have done." The court noted that
it would have found Muratalla's consent to have been involuntary had the
officers said to Muratalla that his son would be removed by DCFS and his
girlfriend would be arrested unless he agreed to the search of his residence.
But in the absence of such a direct threat by the officers, the trial court
concluded that Muratalla's consent was obtained without police coercion."
The Court of Appeals, 2nd Disrtict, California affirmed the trial court's
decision. Click
here for the complete decision.

(Defendant
claims statements were involuntary because he had been given morphine,
hydrocodone and promethazine)

In Williams v. Stephens (June 2014) the
US District Court , N.D. Texas, the court upheld the admissibility of the
defendant's incriminating statements.From the court's opinion, "In his second ground for relief, Petitioner
asserts that his statements to the police were involuntary because he had been
given "mind altering" drugs, i.e., morphine, hydrocodone, and promethazine, for
pain prior to making the statement.... He also claims, in his first ground for
relief, that his statement was involuntary because the police officer who took
his statement threatened his sister with criminal charges.

During the first of the two-day hearing on the motion to
suppress, Detective Thompson testified that he spoke to the medical staff about
Petitioner's mental state, and that the attending nurse told him that
Petitioner was not under any type of medication that would impair or hinder his
ability to talk and make judgment calls. He also testified that Petitioner
appeared lucid at the time of both statements and gave appropriate answers to
Thompson's questions.... Thompson acknowledged speaking to Petitioner's sister at
the hospital to gather information. He denied telling her she was a suspect,
threatening to handcuff her, speaking to any of Petitioner's family members
about being suspects, telling Petitioner that one of his family members was a
suspect, or threatening to arrest a family member.

Bill Jones, the nurse administrator at Parkland, testified
that he witnessed Petitioner make the second statement to police. He signed the
statement, along with Petitioner and Thompson. Before the statement, Jones
spoke to Petitioner to make sure he was coherent, lucid and not under duress.
He asked Petitioner if he knew what he was about to do, and whether the police
had anything to do with him deciding to make the statement. Petitioner stated
that he knew what he was doing. (Supp. R.[5/8/09]:47–49). After
Petitioner made his statement and the police officer began to read it back,
Jones asked Petitioner whether he realized the implications of making the
statement, and Petitioner said that he did. Id. at 49–50. Jones
did not believe that Petitioner was suffering from any delusions; he believed
that Petitioner was able to make an independent, informed decision. Id.
at 50. After the statement was taken and the police left the room, Jones
against asked Petitioner whether anyone did anything to cause him to make the
statement, and Petitioner said no. Id. at 55.

The
record shows no coercive police conduct on the part of Detective Thompson, or
any other officer, that would render Petitioner's two statements involuntary.
Contrary to his assertion, he only received morphine in doses that were below what the
defense expert considered normal dosage for Petitioner's size, and there was no
evidence that Petitioner suffered mind-altering effects from this dosage. His
second statement was coherent, related the facts in a cohesive manner, referred
to the first statement, and was similar in parts to it. Finally, there was no
evidence at the motion to suppress hearings that Petitioner was either
suffering extensive pain or was overly encumbered by hospital equipment. The
nurse administrator took steps to ensure that Petitioner understood what was
happening and wanted to speak to the police. After speaking to the detective,
the statement was read to Petitioner, and he read the statement himself and
signed it. Petitioner's claim that his written statements were involuntary is
without merit and should be denied."

In US v. Taylor (2013) the US
Court of Appeals, Second Circuit over ruled a lower court and found that due to
the defendant's physical condition at the time of the interrogation his
confession was not made voluntarily. From their opinion, "Taylor claims he
was mentally incapacitated during the April 9 interview because of the quantity
of Xanax pills he ingested immediately before his arrest. That claim finds
support in the record. Detective Burch testified that Taylor's body "was
somewhat shutting down," and that "at that time that he was answering
questions ... his body was giving up on him." ... Granted, Burch also
testified that, when Taylor was speaking, he was "coherent" and
understood what was going on when he was not nodding off. Id. But it nonetheless
appears that Taylor fell asleep at least two or three times during the
interview, and the officers repeatedly had to awaken him, or (to use the nicer
term) "refocus" him--at one point coaxing him, "Mr. Taylor, you
have to answer our questions and focus with us."... Agent Tomas
corroborated that Taylor was "a little bit out of it" and dozing off.

The district court credited testimony that Taylor was coherent at times. One
such interval is when Taylor signed the "advice of rights" form on
April 9, a finding that we do not disturb. But as that interview progressed, it
became clear to the officers (as their testimony confirms) that Taylor was in
and out of consciousness while giving his statement, and in a trance or a
stupor most of the time when not actually asleep. Thus, the officers'
persistent questioning took undue advantage of Taylor's diminished mental
state, and ultimately overbore his will. Accordingly, we conclude that Taylor's
statement on April 9 was not voluntary and should have been
suppressed."Click here for the
complete decision.

(Expert testimony allowed on the impact of
opiate addiction on confession reliability)
In State v. Granskie (2013)
the Superior Court of New Jersey, Appellate Division, upheld the lower court's
decision to allow expert psychiatric testimony concerning the potential impact
of the defendant's opiate addiction and withdrawal symptoms on the reliability
of his confession. From their opinion:

"Defendant was suspected of participating in a brutal sexual assault and
murder. Two of his friends confessed to their involvement, but did not
implicate defendant. He initially denied any involvement in the crime. However,
a few days later, while he was in jail on an unrelated warrant, he confessed.
Prior to his trial, defendant claimed that the confession was not voluntary and
was unreliable, because he was suffering from severe heroin withdrawal symptoms
at the time he gave the statement.

... the trial judge held that at an upcoming Miranda hearing and at
trial defendant could present an expert psychiatrist to testify about the
possible relationship between his heroin withdrawal and his confession. The
expert would be permitted to testify that defendant was addicted to heroin and
was suffering from withdrawal when he gave his statement to the police, and
that his claims about the effects of withdrawal were "consistent with his
claim that he was giving an unreliable statement at the time" of his
confession, "given his history of issues with heroin dependence."

On this appeal, the State characterizes the trial judge's decision as a
departure from established case law. We disagree. His ruling was consistent
with settled precedent upholding a defendant's right to present expert testimony
designed to explain to the jury why a particular defendant's psychological
condition would make that defendant vulnerable to giving a false confession. By
contrast, courts have routinely rejected efforts to present expert testimony
concerning the phenomenon of false confessions in general or the impact of
police interrogation methods in producing false confessions. Click
here for the complete decision.

(What level of intoxication renders a
confession inadmissible?)
In Smith v. Commonwealth (2013)
the Supreme Court of Kentucky held that the defendant's intoxication at the
time of the police interview did not render statements to the police unknowing,
unwilling or involuntary. In reaching their decision the court stated the
following:

"Generally speaking, no constitutional provision protects a drunken
defendant from confessing to his crimes. "The fact that a person is
intoxicated does not necessarily disable him from comprehending the intent of
his admissions or from giving a true account of the occurrences to which they
have reference.

"However, there are two circumstances in which a defendant's level of
intoxication might play a role in the suppression decision. First, intoxication
may become relevant because a "lesser quantum" of police coercion is
needed to overcome the will of an intoxicated defendant....Thus, trial courts
must consider a defendant's level of intoxication when considering whether
police coercion has overborne a defendant's will so as to render the confession
involuntary for purposes of the Due Process Clause.

"Second, a confession may be suppressed when the defendant was
"intoxicated to the degree of mania" or was hallucinating,
functionally insane, or otherwise "unable to understand the meaning of his
statements." ... quoting Marshall & Steiner, The Confessions of a
Drunk, 59 ABAJ 497 (1973)) ("[W]hen intoxication reaches the state in
which one has hallucinations or 'begins to confabulate to compensate for his
loss of memory for recent events'... the truth of what he says becomes strongly
suspect.").

"Neither of these exceptions is applicable here. First, there was no
evidence of coercive influence by the police. All of the evidence tended to
show that Appellant freely and knowingly accompanied the police to the
headquarters for the express purpose of submitting to questioning about his
alleged participation in the shooting. In addition, the record discloses that
Appellant was read his Miranda rights at the beginning of the station
interview, and that he signed a waiver form reflecting that he understood these
rights and was voluntarily waiving them for the express purpose of the
interview. Therefore, the first exception does not apply. It is
well-established that no constitutional violation may occur in the absence of
state-sponsored coercion.

"Further, a review of the interrogation discloses that Appellant was not
so intoxicated to the degree of mania, hallucinations, or functional insanity.
There is no basis to conclude that the interview should have been suppressed on
the basis that Appellant was so intoxicated that his statement was inherently
unreliable."Click here for the
complete decision.

(Intoxication and sleep deprivation)

In State
v. Strozier (2013) the South Dakota Supreme Court upheld the
admissibility of the defendant's confession, who claimed that he was too
intoxicated to make a knowing and intelligent waiver of his Miranda
rights. This case clearly illustrates the value of electronically recording an
interrogation to diffuse such claims. In their opinion the Supreme Court
stated the following:

"There is also no evidence that
Strozier's level of intoxication impaired his ability to waive his rights. "The
test of voluntariness of one who claims intoxication at the time of waiving his
rights ... is whether the individual was of sufficient mental capacity to know
what he was saying—capable of realizing the meaning of his statement—and
that he was not suffering from any hallucinations or delusions.".... Here,
Strozier does not contend that he did not know what he was saying or that he
was having hallucinations or delusions. On the contrary, a review of the
video recording (emphasis added) indicates that he understood what he was
saying, and he was not suffering from hallucinations or delusions. This record
reflects that even though Strozier had consumed alcoholic beverages, he was not
so intoxicated as to be incapable of waiving his rights."

The court also stated, "Although Strozier
also claims that he was deprived of sleep, he never indicated during the
interrogation that he was tired. On the contrary, the video recording shows
(emphasis added) that he was alert and animated. We find that "there is no
evidence that [Strozier] was so overcome by fatigue or stress as to prevent" a
valid waiver of his rights.... Further, our review of the
interrogation's video recording (emphasis added) reflects that Strozier
understood Detective Carda's advisement of rights and the consequences of
waiving them. We conclude that under the totality of the circumstances,
Strozier voluntarily, knowingly, and intelligently waived his Miranda
rights.Click here for the complete decision.

(Can an intoxicated suspect make a voluntary confession?)

In Frazier v. State (2011) the Georgia Court of Appeals
upheld the admissibility of the defendant's incriminating statement even though
he was under the influence of alcohol at the time he made the statement.
The court stated that "The mere fact that a defendant was intoxicated at
the time of the statement does not render it inadmissible."Click here for the
complete decision.

(Can "days of drug use
and sleep deprivation" render a confession inadmissible?)

In State v. Decloues (2011) the Court of Appeal of
Louisiana, Fourth Circuit upheld the trial court's decision to admit the
defendant's confession, even though the defendant claimed that "he was impaired
from days of drug use and sleep deprivation at the time he gave his statement."
In their opinion the court stated that "The defendant argues that his demeanor
during the taped confession and his testimony at trial clearly show that he was
impaired at the time he gave his confession.....Our
review of the taped confession indicates that at the beginning of the interview
the detective read the defendant his rights. The defendant appears attentive
while those rights were being read, acknowledging each one individually. When
asked whether he understood his rights, the defendant gave a definitive yes.
The defendant is noticeably fidgety and sometimes had to be asked to speak up,
but... he was easily calmed. His answers were responsive to the questions asked
by the detective....Moreover, the defendant's
confession coincides with the physical evidence presented at trial."Click here for the complete decision.

(Court
rejects claim confession was involuntary due to marijuana and alcohol use)

In Parker v. Allen (2009) the
United States Court of Appeal, Eleventh Circuit, upheld the trial court's
decision to reject the claim that the defendant's confession was made
involuntarily due to the influence of drugs and alcohol on his state of mind at
the time. At trial the defense expert opined that by the time of his statement
at 5:30 P.M., Parker would have been in a mixed state of alcohol and marijuana
intoxication and alcohol withdrawal. He explained that Parker would have been
suffering from anguish, desperation, discomfort, and pain as a result of
alcohol withdrawal compounded by his inability to inject Talwin. He stated that
the combination of withdrawal, brain damage, and neuropsychological deficits
would have altered Parker's judgment and made it more difficult for him to
control his impulses. He explained that, "driven by a combination of
intoxication[,] addiction withdrawal[,] and memory problems" "more
than his will," he may have understood the basic questions but would have
felt "an extreme amount of urgency to say yes to anything that he thought
would get him ... home." He noted that the sedative drugs that Parker was
using, alcohol and marijuana, would have acted as a truth serum to "loosen
his control over his own willful processes." Click here for the
complete decision.

(Painkillers and "high" from crack cocaine)

In State v. Ashley (2009) the
Louisiana Court of Appeal, Second Circuit, upheld the trial court's decision to
admit the defendant's confession. The defendant had claimed that at the time of
his alleged confession he was on painkillers and still "high" from
crack cocaine. The court found that "No corroborating evidence was given
regarding the existence of the prescription, the fact that it was filled by the
jail, or what particular painkiller the defendant claimed to be on. He also
claimed that he was in pain from the dog bite and hungry. He asserted that he
felt threatened because he was told that he would not be allowed to eat until
he answered all their questions.

The recording itself indicates that the defendant mentioned eating twice; when
the comments were made, no one is heard indicating that food would be withheld
until a confession was forthcoming. To the contrary, the officers responded in
a positive manner that the defendant would be fed upon his return to the jail.
Furthermore, the sound and content of the defendant's speech during the
statement does not bear any of the earmarks of someone under the influence of
an intoxicating substance, such as slurred speech or disorientation. Nor is
there any indication that the confession was being made under the influence of
fear, duress, intimidation, inducements, or promises." Click
here for the complete decision.

In Commonwealth v Pugh (October 2014) the Superior Court of Pennsylvania
found that "expert testimony regarding false confessions is impermissible
as it provides no pedagogical purpose and interferes with the jury's exclusive
duty to assess the credibility of witnesses." From their opinion the
Superior Court stated the following:

"The Supreme Court's recent decision, Commonwealth v. Alicia, ---
Pa. ----, 92 A.3d 753 (2014), held that expert testimony on the phenomenon of
false confessions would impermissibly invade the jury's exclusive role as the
sole arbiter of credibility. In Alicia, the defendant was accused of murder and
other related charges. The police questioned the defendant and he eventually
confessed to the murder. Defendant later moved to use a false confession expert,
citing his own low intelligence, mental health issues, and that his written
confession contained a number of hallmarks which indicated his confession was
false. The expert proffered by the defendant claimed, during an a hearing on
the admissibility of his testimony, that he would testify generally about
police interrogation methods that can put an innocent suspect at risk and also
about the specific ones used in defendant's case. The trial court held that the
testimony was permissible as to the general aspects of police interrogation
techniques, but prohibited the expert from providing any testimony as to the
specific allegations in defendant's case. This Court, in a divided panel,
affirmed the decision.

The Supreme Court of Pennsylvania, following the lead of the United States
Court of Appeals for the Tenth Circuit in United States v. Benally, 541
F.3d 990 (10th Cir.2008), reversed. The Court found that "expert testimony
such as the proposed testimony of [the defense expert] Dr. Leo constitutes an
impermissible invasion of the jury's role as the exclusive arbiter of
credibility." Alicia, 92 A.3d at 764. First, the Court noted that
regardless of whether an expert opined on whether the confession was true or
false, the effect would be the same: jurors would be persuaded to disregard the
confession and credit the defense's testimony that it was a lie. Second, if the
expert testimony were allowed, the Commonwealth would likely counter with its
own rebuttal expert testimony, which would lead to befuddlement rather than
serve to educate the jury.

Ultimately, the Pennsylvania Supreme Court found that "the matter of
whether Appellee's confession is false is best left to the jury's common sense
and life experience, after proper development of relevant issues related to,
among other things, the particular circumstances surrounding the elicitation of
his confession, using the traditional and time-honored techniques of
cross-examination and argument."

Instantly, there is no dispositive factual or legal basis with which to
distinguish Pugh's claim from that of the recent Supreme Court decision in Alicia.
Accordingly, as we can find no distinguishable difference between the claim
advanced by Pugh and the Supreme Court's decision in Alicia, we must conclude
that Pugh's claim warrants no relief."

(Pennsylvania Supreme Court finds that
expert testimony of the issue of false confessions would impermissibly invade
the province of the jury)

In Commonwealth
v. Alicia (May 2014) the Supreme Court of Pennsylvania held
that expert testimony from Dr. Richard Leo on the phenomenon of false
confessions would impermissibly invade the jury's exclusive role as the arbiter
of credibility.From the court's
decision:

"Although this Court has not previously ruled on the
admissibility of expert testimony concerning false confessions, courts in other
jurisdictions have done so. Many have held such testimony inadmissible. For
example, in United States v. Benally, 541 F.3d 990, 993 (10th Cir.2008), the
Tenth Circuit Court of Appeals upheld a district court's refusal to admit a
psychologist's expert testimony concerning whether false confessions occur, and
if they do occur, why they occur. The defendant-appellant had testified that
his confession was false and claimed that it had been prompted by federal
agents' coercive tactics. Id. In rejecting the defendant-appellant's
proffered expert testimony, the Tenth Circuit held as follows:

[The psychologist's expert] testimony inevitably would
encroach upon the jury's vital and exclusive function to make credibility
determinations. While [the defendant-appellant] emphasizes that [the
psychologist expert] would not have opined as to whether she believed [that he
had] confessed falsely, with or without the opinion, the import of her expert
testimony would be the same: disregard the confession and credit the
[defendant-appellant's] testimony that his confession was a lie. Testimony
concerning credibility is often excluded because it usurps a critical function of
the jury and because it is not helpful to the jury, which is capable of making
its own determination regarding credibility.

In United States v. Jacques, 784 F.Supp.2d 59, 60 (D.Mass.2011), a
district court declined to admit the defendant's proffered expert testimony
concerning the existence of false confessions generally and the features of the
defendant's specific interrogation that allegedly increased the risk of a false
confession. Citing Benally, supra, the court concluded, inter alia,
that the proffered expert testimony was contrary to the well-established rule
that an expert cannot offer an opinion as to a criminal defendant's guilt or
innocence: "An opinion that a defendant's [confession] is unreliable cannot be
logically disconnected from the implicit opinion that the defendant is, in
fact, not guilty." Jacques, supra at 63 (emphasis in original)... See
also Brown v. Horell,
644 F.3d 969, 978, 982–83 (9th Cir.2011) (in denying a
petition for habeas corpus, upholding the exclusion of expert testimony as to
interrogation methods that tend to produce false confessions, where the trial
court had concluded that the defendant's explanation for his allegedly false
confession, to wit, a threat of violence against another person, was within the
jury's experience); State v. Free,
351 N.J.Super. 203, 798 A.2d 83, 95–96 (N.J.Super.App.Div.2002)
(holding that the trial court abused its discretion in admitting expert
testimony as to false confessions and interrogation techniques because, inter
alia, it was not scientifically reliable, it was of no assistance to the
jury, and the jury would recognize that coercive methods have the potential for
causing a false confession).

After careful review of relevant opinions from courts of
other jurisdictions, as well as our own precedent, we are not persuaded by the
rationale of those courts that have admitted expert psychological/psychiatric
testimony regarding the phenomenon of false confessions and police
interrogation techniques. Rather, we conclude, in agreement with the Tenth
Circuit Court's decision in Benally, supra at 995, that expert testimony
such as the proposed testimony of Dr. Leo constitutes an impermissible invasion
of the jury's role as the exclusive arbiter of credibility."

Click here for the complete decision.

(Court bars Dr. Richard Leo from testifying:
proposed area of expert testimony has not reached the "level of scientific
reliability")

In Woodall v. State (2014)
the Supreme Court of Georgia upheld the lower court's decision to exclude the
testimony of Dr. Richard Leo.

"Appellant contends the trial court erred when it denied his request to
tender Dr. Richard Leo as an expert in police interrogation techniques and
false confessions. This Court has upheld rulings within the last several years
that this proposed area of expert testimony has not reached the "level of
scientific reliability" necessary to allow its admission at trial....
Having reviewed the hearing transcript on the expert's proffer FN 8 in this
case, we conclude the trial court did not abuse its discretion when it barred
the expert from testifying in this case.

FN 8. Dr. Leo, who is a social psychologist and criminologist, stated that he
wrote his doctoral thesis on false confessions and he indicated that he had
personally viewed two to three hundred videotaped confessions since 1994. He
stated, however, that there is no database of false confessions and each
researcher is limited by his own collection of data. He also testified that not
every jurisdiction is required to videotape interrogations and so any data is
also limited in that respect. Dr. Leo said he reviewed the videotape of
appellant's confession, but was not asked to determine whether appellant's
confession was true or false. He also admitted he could not opine to the jury
as to whether any particular interrogation resulted in a false confession,
stating that the most he could do for the jury was identify the police
interrogation techniques being utilized in the video." Click
here for the complete decision.

In People
v. Linton (2013) the Supreme Court of California upheld the lower
court's decision to exclude the testimony of Dr. Richard Leo. From the
Supreme Court's opinion:

"Prior to trial, defendant filed a motion
to introduce the expert testimony of social psychologists Dr. Richard Ofshe or
Dr. Richard Leo regarding police interrogation techniques and false confessions....
Defendant asserted such testimony was relevant to determine the voluntariness
and trustworthiness of the statements he made at the police station. At trial,
defendant sought to introduce the testimony of Dr. Leo.

"In a declaration submitted by defendant
to the trial court in connection with his efforts to introduce this testimony,
Dr. Leo averred that "[c]ontrary to public myth and mis-perception, it is well
documented that police interrogators can and do elicit false confessions in
response to common, psychological methods of interrogation." According to Leo,
research has established that "certain police interrogation techniques are
correlated with the likelihood of a false confession" and such "research
findings are beyond the common understanding of the lay person." Leo's proposed
trial testimony would address "the following general topics: the use of
influence, persuasion and coercion during interrogation; how certain police
interrogation techniques affect the decision-making of custodial suspects; why
certain psychological techniques are coercive and their likely effects; how and
why contemporary police interrogation techniques can lead guilty suspects to
make the decision to confess; how and why contemporary police interrogation
techniques can lead the innocent to make the decision to confess; and how to
apply generally accepted principles to evaluate the reliability of confessions
statements."

"The prosecutor opposed the defense
motion, arguing there was no foundation for such testimony because defendant
had not recanted his confession and because there was no other evidence that
his confession was false. The prosecutor also contended that the defense had
failed to show the subject matter was a valid, accepted area of expertise or
that the testimony would assist the jury.

"The defense countered that a recantation
was unnecessary before an expert...could
be called, that it would be unconstitutional to require defendant to testify
his confession was false before the testimony could be admitted, that there was
sufficient evidence of falsity in the testimony from both pathologists that
Melissa could not have been strangled with the headphone cord in the manner
defendant described, and that testimony regarding the general factors that
might lead to a false confession was beyond the knowledge of an average person.
The defense repeated the claims that express promises of leniency had been made
to defendant and that the interviewers' questioning was coercive in light of
defendant's personal characteristics.

The trial court ultimately excluded Dr.
Leo's testimony .... Specifically, the court concluded the proffered
testimony was "extremely speculative" because there was no "basis or
foundation" to indicate defendant's confession was false. The court noted defendant
was not required to testify, but there was no evidence defendant had otherwise
recanted his confession and the pathologists' testimony and the physical
evidence did not establish any falsity of defendant's interview statements
because the testimony and evidence were not incompatible with defendant's
explanation of how he choked Melissa. Therefore, the probative value of Leo's
testimony, "if any," was substantially outweighed by its undue consumption of time." Click
here for the complete decision.

(Court allows
Dr. Richard Leo to testify on false confession issues)

In Caine
v. Jon Burge, et al., (2013) the U.S. District Court, N.D. Illinois,
ruled that "Dr. Leo will be permitted to testify to various factors that can
cause false confessions, and to their presence in this case. Dr. Leo will also
be permitted to generally testify that, based on his knowledge, experience, and
study of confessions and police interrogation, false confessions frequently do
not contain the type of crime scene knowledge that only a true perpetrator
would have, and that some false confessions contain such detail because of
police contamination. However, Dr. Leo will not be allowed to testify as
to his opinion that Caine's and Patterson's confession statements were false.
In particular, he will not be allowed to testify as to his comparison of the
witnesses' confessions and the physical evidence of the crime. That is
decidedly a jury question and allowing Dr. Leo to opine on that subject would
invade the province of the jury. Specifically, the Court will not allow Dr. Leo
to testify to the opinions included in his report dated January 10, 2013 at
pages 31 (second full paragraph), page 32 (entirety), page 46 (second
paragraph), and page 47 (first paragraph, carried over from page 46).
Obviously, statements in his report beyond these paragraphs that deal with the
same type of testimony are similarly disallowed ( i.e., the statement in
his conclusion that the confessions are unreliable).Click here for the complete decision.

(U.S. District Court excludes the testimony of
Dr. Richard Leo: "his theories are both unreliable and irrelevant")

In US v. Deuman (2012) the
U.S. District Court, W.D. Michigan granted the government's motion to exclude
the testimony of Dr. Richard Leo on the issue of false confessions....

In their opinion the court stated that, "If permitted to testify as an
expert in this case, Dr. Leo would explain: (1) that false confessions or
incriminating statements are counterintuitive; (2) why confessions are
prejudicial; (3) risk factors for false confessions, such as interrogation
techniques; and (4) the framework for how false confessions occur. Dr. Leo
would not offer an opinion as to whether Defendant lied or made false
statements or whether Defendant's statements are unreliable.

"Following the Daubert hearing, defense counsel submitted a lengthy
affidavit from Dr. Leo, which discusses: (1) the background of Dr. Leo's
research into false confessions; (2) his theory about the three decision points
that lead to a false confession, i.e., the police decision to classify an
individual as a suspect; use of psychological interrogation tactics as a means
to move the suspect from denial of guilt to admission; and solicitation of a
post-admission narrative from the suspect, in which the suspect provides an
account of the crime that may be contaminated with non-public crime facts
mentioned by the interrogator; (3) Defendant's account of events demonstrating
that during and subsequent to the August 17, 2011, polygraph examination, the
FBI agents used coercive interrogation techniques that can lead to false
confessions; and (4) "dispositional" risk factors related by Dr.
William Sanders that render Defendant more susceptible to making a false
confession.

"...the Court will exclude Dr. Leo's testimony because his theories are
both unreliable and irrelevant to the facts of this case, and any limited
probative value they might have is substantially outweighed by the potential
dangers of undue prejudice and misleading the jury.... Although this research
confirms that false confessions do, in fact, occur and that certain coercive
interrogation techniques may lead to false confessions, Dr. Leo's theory, at
least at this stage in its development, provides neither a useful nor
appropriate basis to assist a jury in assessing whether a particular
confession, or even incriminating statement, was false.

"As Dr. Leo forthrightly admits, despite extensive research and review of
false confession cases, his methodology cannot accurately predict the frequency
and causes of false confessions.... His theories cannot discern whether a
certain interrogation technique, used on a person with certain traits or
characteristics, results in a predictable rate of false confessions. In
addition, he has formulated no theory or methodology that can be tested....
While the Court is aware that some laboratory studies, such as the ALT key
study by Professors Kassin and Perillo, suggest that coercive interrogation
tactics produce a significant rate of false confessions, such studies shed no
light on real-world interrogation practices and results because they "were
not conducted by law enforcement, were not part of a criminal investigation,
did not involve actual suspects, and did not present the students with a
serious penalty." United States v. Jacques, 784 F.Supp.2d 59, 66
(D.Mass.2011)."Click here for the
complete decision.

(Court
finds that the research by false confession expert Dr. Richard Leo utilized
"unreliable methodology" and was prone to inaccuracy or bias)

In People v. Kowalski (2012)
the Michigan Supreme Court ruled as follows:
"The circuit court excluded the testimony of two experts regarding the
occurrence of false confessions and the police interrogation techniques likely
to generate them as well as the psychological characteristics of defendant that
allegedly made him more susceptible to these techniques.

We hold that the circuit court did not abuse its discretion by excluding the
expert testimony regarding the published literature on false confessions and
police interrogations on the basis of its determination that the testimony was
not reliable, even though the subject of the proposed testimony is beyond the
common knowledge of the average juror."

From the Supreme Court's opinion:
"The circuit court examined the manner in which Leo analyzed the
confessions that he determined to be false:
[Leo] starts with the conclusion that the confession is false and then he works
backwards.... He doesn't take into consideration why someone might falsely
confess, other than because of a police interrogation technique.... [A]nd there
are reasons why people would falsely confess, they might be trying to protect
someone.... He hasn't determined a reliable means to have a study group consist
of innocent people who wrongfully confess that weren't mentally ill or youth.

The circuit court criticized this methodology for failing to compare true and
false confessions and identify factors that contribute to false confessions but
not true confessions. As the circuit court stated, "[I]f true and false
confessions can be derived from the same police interrogation techniques, [how]
is it possible to blame police interrogation techniques with any degree of
reliability?" Given what the circuit court considered to be inadequacies of
Leo's data and methodology, the circuit court concluded that Leo's testimony
was unreliable.

Nothing in the circuit court's analysis placed the exclusion of Leo's testimony
outside the range of principled outcomes. The circuit court properly considered
all stages of Leo's analysis and found it unreliable at every stage. With
regard to the data underlying Leo's testimony, the circuit court reasonably
determined that its sources were unreliable because they were prone to
inaccuracy or bias and, in nearly all instances, had not been subjected to the
rigorous standards of scientific peer-review. Additionally, the circuit court
raised multiple legitimate concerns about the "manner in which [Leo]
interpret[ed] and extrapolate[d] from those data." The unreliable methodology,
as the circuit court described, resulted in conclusions consistent with Leo's
own preconceived beliefs rather than testable results consistent with an
objective, scientific process. Therefore, because the exclusion of Leo's
testimony was a reasonable and principled outcome, the circuit court's decision
did not amount to an abuse of discretion. The Court of Appeals came to the same
conclusion after making similar observations about the data and methods
underlying Leo's studies, and we thus affirm the lower courts' decisions to
exclude Leo's testimony.Click here for the
complete decision.

In State v. Rafay (2012) the
Court of Appeals of Washington, Division 1 upheld the trial court's opinion to
exclude the testimony of Dr. Richard Leo on the issue of false confessions.
From the Court of Appeals opinion:

"counsel.... informed the court that Leo would testify generally about the
psychology of police interrogations, the phenomenon of false confessions, and
"the erroneous but commonly held belief that people of normal mental
capacity do not make untruthful and [inculpatory] statements." Counsel asserted
that Leo would not opine on whether the confessions were false but would state
that "if the confession in this case is false, he'll characterize it in
one of the four groups that he's laid out from his research."

"In sum, Leo was unable to testify about any meaningful correlation
between specific interrogation methods and false confessions or provide any
method for the trier of fact to analyze the effect of the general concepts on
the reliability of the defendants' confessions. Given the defendants' alleged
basis for their false confessions, such limitations rendered Leo's proposed
testimony potentially confusing and misleading."Click here for the
complete opinion

(Court excludes the testimony of Dr. Richard
Leo: "the proposed expert testimony was little more than
speculation.")In People v. Mullen (2012)
the Court of Appeal, Third District, California upheld the lower court's
decision to exclude the testimony of Dr. Richard Leo on the issue of false
confessions. In their decision the Appeals Court stated that, "Expert
testimony in this regard would not have altered appreciably the jury's
perception of the confession. While Dr. Leo would have testified that stress
can make a suspect more compliant, his testimony would not have, and could not
have, established that the confession was false. The court further stated that,
"Taking into account the totality of the circumstances, the proposed
expert testimony was little more than speculation and would not have changed
the verdict of a reasonable jury."Click here for the
complete decision.

(Jury rejects the
testimony of Dr. Richard Leo)

In People v. Hernandez (2011) the Court of Appeal, Second
District, California upheld the conviction of the defendant. At trial Dr.
Richard Leo testified that in this case he "found evidence of coercive
techniques. The detectives suggested Hernandez would be less culpable if he did
not plan the shooting, implying leniency, and mentioned not getting to see his
son again. The detectives asked Hernandez, "Are you the guy that did that, or
are you the guy that got caught up in the circumstance that just happened?
[Be]cause that's something that can be explained." This suggested Hernandez's
explanation of the incident might not be criminal. This theme recurs throughout
the interrogation. The detectives suggest they are going to help Hernandez
present the case to the District Attorney in a way that will be beneficial to
him and will not prevent him from not seeing his son for 20 years. The
detectives gave Hernandez the impression the shooter was culpable and Hernandez
was less culpable. At the end of the interview, Hernandez asked about "the timeframe
on ... being out there with my boy?" This indicates Hernandez believed he would
be released if he gave the detectives an account they found to be truthful. Leo
concluded the detectives used many coercive techniques in the interviews."The jury rejected the premise proposed
by Dr. Leo and convicted Hernandez. Click here for the
complete decision.

(Court
rejects the testimony of Dr. Richard Leo on the issue of false confessions)

In
People
v. Polk (2011) the Appellate Curt of Illinois, First District, upheld
the lower court's decision to exclude the testimony of Dr. Richard Leo.
In this case the defendant offered Dr. Leo's testimony that "factors
including defendant's low IQ and interrogation techniques used in this case,
such as the detectives challenging defendant's denials and detaining defendant
for a significant length of time, created a risk of a false confession."

"Similarly,
Dr. Leo's testimony that defendant's low IQ and the police interrogation
techniques used in this case could have resulted in a false confession was not
beyond the understanding of ordinary citizens, nor a concept difficult to
understand. In addition, the circuit court did not prevent defendant from
challenging the credibility and weight of his confession throughout defendant's
trial. Further, the jury received testimony in this case regarding defendant's
education, age, and intellectual performance. This included psychologist Dr.
Joan Leska's testimony that defendant had an IQ of 70, placing him in the
second percentile, which is extremely low, in the borderline range of
intellectual functioning. The jury also heard testimony regarding the
conditions of defendant's interrogation, the length of time defendant was
interrogated, the receipt and waiver of Miranda rights, and the content
of the police questions and defendant's statements. The jury viewed defendant's
videotaped statement and could assess the format in which the questions were
presented and answers were provided. It was reasonable for the circuit court to
conclude that the jury could decide the issue of the reliability of defendant's
statement and could have reached the same conclusion as Dr. Leo based on the
testimony of other witnesses about defendant's intellectual level and the
evidence of defendant's interrogation. Therefore, we cannot say that the
circuit court abused its discretion in excluding Dr. Leo's testimony." Click here for the complete decision.

(California Court of
Appeals finds that "Dr. Leo's proffered testimony, presented in a vacuum,
created a substantial danger of confusing the issues or misleading the jury")

In
People
v. Dimas (2011) the Court of Appeal, Second District, CA upheld the
lower court's decision to exclude the testimony of Dr. Richard Leo on false
confession issues. The Court of Appeal summarized the lower court's
decision as follows:

"Prior
to trial, the People moved to exclude the proffered testimony of a defense
expert, Richard Leo, Ph.D., J.D., on the subject of false confessions. The
trial court did not initially render a definitive ruling before trial, advising
counsel it wanted to hear from Dr. Leo first. During trial, the court
considered the issue at a hearing outside the presence of the jury pursuant to Evidence Code section 402.

Dr.
Leo testified that he had reviewed Dimas's video-recorded interviews. He
explained that if he were allowed to testify, he would note and explain certain
interrogation techniques used by the police, and discuss the scientific
research that has identified the aspects of those techniques posing "risk factors
for false or unreliable statements." He would not offer any opinion about
whether Dimas's statements to the police were true or false.

According
to Dr. Leo, the techniques used during Dimas's interrogations were of a kind
that have been linked to false statements. The officers used a "ploy" of
informing Dimas that he had failed the polygraph examination, and told him that
the results would be admissible in court. The interrogation was accusatory and
based on a presumption of guilt. In addition, the officers tried to induce a
confession by telling Dimas that admitting guilt would be in his self-interest.
The interrogation the following day involved similar, albeit more "muted"
inducements to give a confession.

On
cross-examination, Dr. Leo acknowledged that he had not interviewed Dimas. Dr.
Leo admitted he did not evaluate Dimas to assess his particular susceptibility
to any interrogation techniques. Dr. Leo agreed that Dimas had spoken
voluntarily to police during his interrogations, but opined that "any" interrogation
which includes threats or promises, whether implied or explicit, will be
"psychologically coercive" insofar as a confession is concerned. Dr. Leo
conceded that there was no established scientific foundation for measuring how
often false confessions are made because it is difficult to know the number of
false confessions that have actually been provided by suspects. He acknowledged
there is insufficient data on the subject."

After
this review the Court of Appeals concluded "In our view, Dimas's case falls
somewhere in between Hall and Page, and best fits the Ramos model. We reject
Dimas's claim of expert witness error because the record supports the trial
court's conclusion that Dr. Leo's testimony would not have been helpful. There
is no evidence in the record suggesting that Dimas ever refuted his confession,
or that Dr. Leo had any reason to believe Dimas's confession was false. Absent
some evidence indicating that Dimas was susceptible to making a false
confession there was little for Dr. Leo to offer to the jury other than an
abstract, academic discussion on the subject of false confessions. Such
testimony would have been unrelated to a substantive foundation concerning
Dimas' case. Dimas did not testify about his experience during the interrogations,
and Dr. Leo acknowledged that he never interviewed Dimas. We will not find the
trial court abused its discretion in rejecting Dr. Leo's testimony because we
cannot say that the trial court's ruling was arbitrary or beyond the bounds of
reason in light of all of the circumstances.For the same reason, we find the trial
court's ruling under Evidence Code section 352 was also
correct. Dr. Leo's proffered testimony, presented in a vacuum, created a
substantial danger of confusing the issues or misleading the jury." Click here for the complete decision.

(Dr. Richard Leo's testimony of false
confessions properly excluded)
In US v. Redlightning (2010)
the US Court of Appeals, Ninth Circuit, upheld the trial court's decision to
exclude the testimony of Dr. Richard Leo on the issue of false confessions. In
reaching their decision the Court of Appeals pointed out that, "The district
court excluded the proffered expert testimony of Dr. Leo for the following
reason:

At the Daubert hearing regarding Dr. Leo's testimony, the court learned from
Dr. Leo that there was nothing in the record at this point to support his
theory that the interrogation techniques used in this case raised the risk of a
false confession.... Here, the court, as gatekeeper, cannot permit Dr. Leo to
testify regarding the possibility of a false confession due to police
interrogation techniques when he can point to no evidence in the record that
any of these techniques are present in this case.

The district court concluded that "Dr. Leo's opinion regarding Defendant's
confession in this case is based solely on conversations Dr. Leo had with
defense counsel wherein defense counsel informed Dr. Leo that Defendant had
been promised leniency if he confessed."

The Court of Appeals went on to say, "The gatekeeping function requires
that the judge assess whether "the reasoning or methodology underlying the
testimony is scientifically valid," and "whether that reasoning or
methodology properly can be applied to the facts in issue....Here, Redlightning
did not sufficiently show how Dr. Leo's testimony would have applied to the
facts of his case. Perhaps most importantly, Dr. Leo testified that nothing in
the record, including the FBI reports of the October 2 interview and the
testimony at the pretrial suppression hearing, showed that any coercive tactic
that may lead to a false confession was used when the FBI questioned Redlightning.
To be relevant, an expert's opinion must be based on "sufficient facts or
data," and the witness must be able to "appl[y] the principles and
methods reliably to the facts of the case."Click
here for the complete decision.

(Court
listens to but rejects Dr. Richard Leo's testimony that the interrogation was
"psychologically coercive and the detectives "went over the
line." Also, "suggesting possible justifications for a homicide (such
as self-defense) is not coercive.")

During the suppression hearing "An expert in the field of interrogation
techniques, Professor Richard Leo, was called to testify by defendant during
the pretrial hearing to determine the admissibility of defendant's statements
during the interrogation. Leo concluded the interrogation was psychologically coercive
and the detectives "went over the line." Leo testified: "I can't
get inside [defendant's] head, but the structure of the interrogation is ...
'we have all this evidence, it is irrefutable, this is your only chance. Here
is an account, here is the explanation that we will get you a misdemeanor and
is relatively painless. But, if you avoid this opportunity, you are looking at
rotting in jail and getting charged with one, two, or three serious felonies.'
[P] So the logic of it is 'if you don't do anything, you are going to be in the
worst possible situation.' "

The trial court denied defendant's motion to exclude the interrogation tape and
transcript from evidence. "[I]t just appears to the court that these
implied promises and threats are of such a nature that they do flow naturally
from these exhortations [to tell the truth] from the police."

The Appeals court further stated in their opinion that, "Accurately
describing the possible consequences of a murder conviction is permissible.
Suggesting possible justifications for a homicide (such as self-defense) is not
coercive; this tactic instead suggests "possible explanations of the
events and offer[s] defendant an opportunity to provide the details of the
crime." ( People v. Carrington (2009) 47 Cal.4th 145, 171 ( Carrington ).)
Although it is a factor potentially supporting a finding of involuntariness,
deceiving a defendant by inaccurately describing the existence of physical
evidence linking defendant to the crime does not necessarily invalidate a confession.
( People v. Thompson (1990) 50 Cal.3d 134, 166-167, 170 [confession voluntary
even though interrogators falsely told defendant that tire tracks, soil
samples, and rope fibers linked him to crime]; People v. Watkins (1970) 6
Cal.App.3d 119, 124-125 [confession voluntary even though defendant falsely
told his fingerprints were found on the getaway car]; see Carrington, supra, 47
Cal.4th at p. 172 ["The use of deceptive statements during an
interrogation ... does not invalidate a confession unless the deception is '
" 'of a type reasonably likely to procure an untrue statement' " '
"].) Click here for the
complete decision.

In People v. Lucas (2009) the
Court of Appeal, Third District, California upheld the trial court's decision
to exclude the testimony of Dr. Richard Leo on the subject of false confessions
and police interrogations. The trial court had refused to allow Dr. Leo to
testify, concluding that nothing that the doctor had to say would assist the
jury and that there was "not a shred of evidence before us at this point
to render a basis for any opinion by Dr. Leo that the confession was
false...." In their review of the case the Court of Appeals stated that
"Because the jury's verdict was well grounded in convincing, objective
evidence and did not demonstrate a blind acceptance of the prosecution's
interpretation of defendant's "confession," we cannot say a more
favorable verdict was more likely had Dr. Leo been permitted to testify." Click here for the complete
decision.

(Court excludes testimony of Richard Leo)

In State
v. Law (2008) the Court of Appeals of Washington found that the trial
court's decision to exclude the testimony of Dr. Richard Leo was correct. They
stated:

"Law sought to call Dr. Richard Leo, a social scientist who would testify
about the social psychology of interrogation and the phenomenon of false confessions,
including how police interrogation techniques induce false confessions and what
the indicators of an unreliable confession were. He was also prepared to
testify that the circumstances surrounding Peregrin's questioning of Law
suggested unreliability, and that it was improper for Dr. Hoberman to opine
that Law's confession to following minors was true.

"Initially the trial court ruled that Dr. Leo's testimony would be
admissible based on Law's offer of proof. But after Law testified and denied making
the statements to Peregrin, the trial court ruled that Dr. Leo's testimony
would be excluded. The trial court concluded that this was not a false
confession case, noting that during his testimony, Law "very much made it
clear that he never made those statements.... [H]e never stated that he made
those statements, but because he was threatened or forced or coerced, those
statements are not true.... He simply denied the conduct."

The trial court's ruling was a proper exercise of discretion. Once Law denied
making the alleged confession, any testimony about whether the confession was
false was irrelevant and would not assist the trier of fact. Law contends that
his testimony was not an outright denial, but ambiguous at best, and asserts
that his testimony was simply that Peregrin misconstrued some of his
statements. But claiming that one's statements have been misconstrued is not
the same as claiming that one made a false statement. Expert testimony about
false confessions is only relevant when a party claims that he confessed to
something he did not do. And as the trial court correctly concluded, the record
here does not support Law's argument that he gave a false confession. During
direct and cross-examination, he denied that he told Peregrin that he had
followed 30 to 40 minors, that he had sexual thoughts of past victims two to
three times a week, and that when he saw someone of similar age to the victim
it triggered a sexual thought. The trial court properly excluded Dr. Leo's
testimony." Click
here for the complete opinion.

In People v. Cerda (2008) The Court of Appeal upheld the
trial court's decision to deny the request from the defendant for an expert (Dr. Richard Leo) in false confessions.
The Court stated "a request for services that would be merely convenient
to the defense rather than reasonably necessary need not be granted." Click here for the complete opinion.

In State
v. Law (2008) The Court of Appeals upheld the trial court's decision to
exclude Dr. Richard Leo's
testimony after the defendant testified that he never made incriminating
statements. "The trial court concluded that this was not a false
confession case, noting that during his testimony, Law "very much made it
clear that he never made those statements.... [H]e never stated that he made
those statements, but because he was threatened or forced or coerced, those
statements are not true.... He simply denied the conduct."" Click here for the complete opinion.

In People
v. Steele (2008) The Court of Appeal upheld the trial court's decision
to exclude the testimony of Dr. Richard
Leo, stating, "The defense offered the testimony of Dr. Richard Leo who would have
testified on what psychological factors "might lead a defendant to make a
false statement." Dr. Leo would have testified on police tactics that lead
to inaccurate and unreliable statements. But Dr. Leo would not have offered an
opinion on whether appellant's statements were false confessions. ...The trial
court properly excluded Dr. Leo's testimony. The issue, as appellant framed it,
was whether his statements were voluntary. Dr. Leo would not have testified on
this issue." Click
here for the complete opinion.

(Dr.
Leo has not formulated a specific theory or methodology about false confessions
that could be tested)

In State
v. Wooden (2008) the Court of Appeals upheld the trial court's decision
to exclude the testimony of Dr. Richard
Leo, stating that, "Of particular significance to the Daubert
analysis here, Dr. Leo has not formulated a specific theory or methodology
about false confessions that could be tested, subjected to peer review, or
permit an error rate to be determined. Dr. Leo's research on false confessions
has consisted of analyzing false confessions, after they have been determined
to be false...... Given the evidence before the trial court that Dr. Leo's
expert testimony did not include a reliable scientific theory or anything
outside the understanding of the jury that would assist it in assessing the
reliability of Wooden's confession, the trial court did not abuse its
discretion in refusing to admit Dr. Leo's testimony." Click here for the
complete opinion.

In People v.
Rathbun (2007) the Court of Appeals, Second District, California
rejected the testimony of Dr. Richard Leo, stating in part:

The court ruled that Dr. Leo would not be permitted to testify, his testimony
being irrelevant because, as acknowledged, none of the stated influences was
present with regard to appellant's confession. The court also ruled based on
Evidence Code sections 352 and 801, and Kelly, supra, 17 Cal.3d 24.Click here for the complete
decision

(Court should have allowed Dr. Richard
Ofshe to testify in general about false confessions)

In State
v. Perea (2013) the Supreme Court of Utah found that Dr. Richard Ofshe
should have been allowed to testify at trial on the phenomenon
of false confessionsgenerally.From their opinion:

Mr. Perea argues that the district court also erroneously
excluded the testimony of Dr. Richard Ofshe, a defense expert who intended to
testify regarding false confessions. The district court ruled first that Dr.
Ofshe could not testify as to the truthfulness of Mr. Perea's confession. It
next questioned whether or not an expert was needed to testify to the phenomena
of false confessions and concluded that "a jury of lay people can decide the
question as to whether or not a confession is reliable, involuntary, or coerced
without having an expert testify on that issue."Finally, the court found that Dr.
Ofshe's methods were not "science" and refused to allow any of his proffered
testimony.

Because
we find that any error was harmless, we decline to consider whether the
district court erred when it prohibited Dr. Ofshe from directly testifying as
to the veracity of Mr. Perea's confession. However, we find the district court
did err when it barred Dr. Ofshe from testifying as to the phenomenon of false
confessions generally.Click here for the complete decision.

(If the expert is only testifying
generally about the fact that false confessions happen, that is well within the
grasp of the average layperson and expert testimony would not be required under
Rule 702)

In Commonwealth
v. Harrell (2013) the Superior Court of Pennsylvania upheld the lower
court's decision to exclude the testimony of Dr. Richard Ofshe. From
their opinion:

"Prior to trial, a Frye hearing was
conducted to determine whether expert testimony would be allowed on the subject
of false confessions. The Court held a two-day hearing and took testimony from
"experts" in the field of false confessions and from others who refute the
validity of such scientific endeavors. The Court determined that evidence of
false confessions was not sufficient to pass the Frye standard and precluded the admission of
such evidence at trial.

Recently, .... we upheld the trial court's
denial of the defendant's request to call Dr. Debra Davis, an expert in the
field of false confessions:

[I]f the expert is only testifying
generally about the fact that false confessions happen, that is well within the
grasp of the average layperson and expert testimony would not be required under
Rule 702. The components of a false confession, according to Dr. Davis,
include factors such as the interrogation tactics employed, the training of the
law enforcement personnel involved, and the stress tolerance of the suspect.
This [c]ourt found that testimony concerning these factors can be elicited (and
attacked) through the testimony of other witnesses and is capable of being
understood by the average juror. The jury can then make its own determination
as to the weight afforded to the defendant's confession. Therefore, Dr. Davis'
testimony was not proper because expert testimony is inadmissible when the
matter can be described to the jury and the conditions evaluated by them
without the assistance of one claiming to possess special knowledge upon the
subject.

"Similarly, here, in addition to
identifying various problems with Dr. Ofshe's methodology, the trial court
opined that the issue of false confessions was not beyond the ken of the
average layperson:

"First, the Court is not convinced that
any specialized knowledge is required for jurors to understand the proposition
that a person possessing any of a number of unique factors (mental disability,
fatigue, hunger, tender age, propensity...
toward acquiescence to authority figures etc.) may be more susceptible to
police interrogative techniques. Further, the jurors would certainly be able to
evaluate any evidence or arguments presented at trial by the defense to advance
a theory that the conditions of [appellant]'s interrogation, the techniques
used by police, or the personal characteristics of [appellant] had an impact on
the veracity or voluntariness of [appellant]'s confession without the assistance
of the proffered expert testimony. If anything, the testimony could confuse the
issue by suggesting causal relationships which are not borne out by the
research actually conducted."

"... appellant argues that his due process rights were violated
by the failure to record his interrogation and confession. Appellant argues
that the failure to record his interrogation deprived him of an opportunity to
establish that his confession was involuntary and the product of police
coercion. According to appellant, the police deliberately failed to record the
interrogation so... that appellant would be unable
to contest the voluntariness of his confession by examining the surrounding
circumstances including the police tactics employed, the length of questioning,
promises made, etc. (Appellant's brief at 24–25.)

In Commonwealth v. Craft, .... this
court held that custodial interrogations do not need to be recorded to satisfy
the due process requirements of the Pennsylvania Constitution...The majority of states, with the exception of Alaska
and Minnesota, have not adopted a rule requiring police to record
interrogations.... Nor has the United States Supreme Court been asked to
determine whether the United States Constitution requires the recording of
custodial interrogations as a matter of federal due process... This court
determined that the Pennsylvania Constitution does not require contemporaneous
recording of statements and that the adoption of a rule requiring
contemporaneous recording of custodial interrogation should be left to the
Pennsylvania Supreme Court or the General Assembly, not an intermediate
appellate court." Click here for the complete decision.

(In light of the fact that Dr. Ofshe had never
personally interviewed Petitioner or reviewed the police reports in this case
and did not know whether Petitioner was personally vulnerable to coercive
police techniques, the trial court's decision to exclude Dr. Ofshe's expert
testimony was reasonable)

In Thompson v. Warren (2013)
the US District Court, E.D. Michigan found that the petitioner's claim that the
trial judge's decision to preclude Dr. Ofshe from testifying as an expert
witness on false confessions or coercive interrogation techniques deprived her
of the right to present a defense was unfounded.

The court stated that, "In
the present case, Petitioner is not entitled to habeas relief on his first
claim because there is no clearly established Supreme Court law which holds
that a criminal defendant is entitled to present expert testimony on the issue
of false or coerced confessions. Given the lack of holdings by the Supreme
Court on the issue of whether a criminal defendant is entitled to present
expert testimony on the issue of false confessions or coercive police interrogation
tactics, the Michigan Court of Appeals' rejection of Petitioner's claim was not
an unreasonable application of clearly established federal law.... Moreover,
because numerous federal courts on both direct review of federal criminal
convictions and on habeas review of state court convictions have ruled that a
criminal defendant's rights were not violated by the exclusion of such expert
testimony, Petitioner is not entitled to habeas relief because the cases cited
above clearly show that "fairminded jurists could disagree that the state
court's decision conflicts with" Supreme Court's precedents.... Moreover, in
light of the fact that Dr. Ofshe had never personally interviewed Petitioner or
reviewed the police reports in this case and did not know whether Petitioner
was personally vulnerable to coercive police techniques, the trial court's
decision to exclude Dr. Ofshe's expert testimony was reasonable. Finally, in
light of the fact that the jurors were able to watch the videotaped
interrogations in their entirety and Petitioner's counsel was able to
cross-examine the detectives who conducted the interrogations, Petitioner was
able to present her defense to the jury that her confession was unreliable.
Petitioner is not entitled to habeas relief on her first claim."Click
here for the complete decision.

(Court does
not allow Dr. Richard Ofshe to testify on false confession issues)

In US v. Holmes (2012) the U.S.
Court of Appeals, Fourth District, upheld the lower court's decision to exclude
the proposed testimony of Dr. Richard Ofshe. In their opinion the Court of
Appeals relates the following: "The following day, Holmes notified the
Government that he intended to call an expert witness, Dr. Ofshe, to
"explain why people falsely confess and the factors that are
considered." ... At the Government's request, Holmes later clarified that
Dr. Ofshe would not "be offering an opinion about whether ... the
statements made by [Holmes] in this case were in fact false," but would
educate the jury "about the scientific research on false confessions, the
fact that they occur, and some of the reasons why."

The Court of Appeals found that, "Neither Holmes' brief synopsis of Dr.
Ofshe's opinion nor Dr. Ofshe's curriculum vitae provide the bases and reasons
for his proposed testimony that individuals sometimes make false confessions.
Accordingly, the district court did not abuse its discretion in concluding this
consideration also favored granting the motion in limine."

(Court finds the proposed testimony on false
confessions does not meet the Frye test)

In Bell v. Ercole (2011) the
U.S. District Court, E.D. New York, found that the trial judge exercised
discretion to exclude the expert testimony for the following reasons:

Defendant states that the expert in this case is prepared to testify about
various aspects of the general phenomenon of false confessions, leaving the
question of whether defendant's confession was accurate or false to the jury
(Defense Memorandum p. 7 fn.2). Since abstract principles of social science as
applied to a confession will be espoused, without anything to warrant their
application to this defendant, the proposed testimony would unduly confuse the
jury and confound the issues in the case.

The issue of whether defendant's inculpatory statements were voluntarily made
is a question for the jury to determine. The circumstances of the questioning
and confession will be presented to the jury which will be able to make this
determination.

The District Court further stated that, "Many of the New York cases,
particularly those of the Appellate Divisions, do not go into significant
detail as to the reasons for exclusion of expert testimony relating to
confessions, which is why I relied on a thorough and exhaustive discussion of
the Supreme Judicial Court of Massachusetts, which concluded that proposed testimony
of one of the experts on whom Bell relied, Professor Saul Kassin, did not meet
the requirement for admissibility of expert testimony because of a lack of
general acceptance in the scientific community and the lack of a showing that
the evidence is reliable or valid through an alternative means."Click here for the
complete opinion.

(Dr. Richard Ofshe testifies)

In Contreras v. State(2011)
Dr. Richard Ofshe testified "as an expert witness on the subject of police
interrogation tactics and influence. In particular, he testified about the
significance of certain tactics and explained how they can be psychologically
coercive. Further, Dr. Ofshe related to the jury that false confessions do
occur and people sometimes confess to a crime they did not commit." Click here for the
complete decision.

(Court rejects the testimony
of Dr. Richard Ofshe)

In Brown v. Horell (2011) the US Court of Appeals, Ninth
Circuit, upheld the lower court's decision to exclude the testimony of Dr.
Richard Ofshe on the basis that his testimony would not help the jury assess
the credibility of the defendant's confession. Click here for the
complete decision.

(Military court rules that it was
error to exclude the testimony of Dr. Richard Ofshe on the issue of coercive interrogation
techniques)
In US v. McGinnis (2010) the
US Army Court of Criminal Appeals agreed with appellant's claim that "the
military judge abused his discretion in denying the defense request for expert
assistance "in the area of coercive law enforcement techniques which may
lead to a false confession." In their decision the Court stated the
following:
"Here, appellant "made a specific request for expert assistance
necessary for his defense on a central issue in a closely contested case. The
military judge erred in denying the defense the equal opportunity to obtain
evidence and witnesses guaranteed by Article 46 of the Uniform Code of Military
Justice." Lloyd, 69 M.J. at 101 (Effron, J., dissenting). While defense
counsel was able to consult briefly with Dr. Ofshe, educate himself on coercive
interrogation techniques and obtain CID's training slides, he was hindered from
fully preparing his defense by having an expert as a member of his defense
team. .....While he was able to present the concession from the same CID agents
who took appellant's confession that false confessions do occur, defense
counsel was prevented from obtaining expert assistance, which might have
allowed him, through cross-examination or direct testimony, to present evidence
to the panel on the study of coercive interrogation techniques, why they work,
and how some of appellant's specific characteristics and the circumstances of
this case may have made appellant particularly vulnerable to the interrogators'
coercive techniques. Defense counsel was also unable to obtain from the CID
agents a concession that any of their interrogation techniques could have led
to unreliable admissions in this case. Instead, as a result of the military
judge's error, "the defense was compelled to rely on arguments by counsel
drawing inferences from lay testimony without the benefit of" expert
assistance to prepare for trial and potentially, expert testimony to educate
the panel regarding the study of coercive interrogations and the study of false
confessions. Click
here for the complete decision.

(Court
rejects suppression hearing testimony of Dr. Richard Ofshe)

In People
v. Balbuena (2010) the Court of Appeal, First District, Division 2,
California upheld the trial court's decision to admit the suspect's
incriminating statements. "Richard Ofshe testified as an expert "on
the influence used in police interrogations." In his view, the interrogators,
"working in tandem," used a "psychologically coercive"
strategy "that is pushed forward by offering leniency through suggestion,
and then ultimately through blatant statement of the same point to overcome
resistance.... [I]t is a motivational strategy that is all about benefit if you
comply, and more serious punishment if you don't. And that's the strategy that
is used repeatedly, was developed and then used repeatedly throughout this
interrogation. It's not a simple one statement." The detectives used a
"coherent strategy" throughout the interrogation, promising appellant
he would receive "the worst possible punishment" if he continued to
maintain he had no involvement with the crime, while if he agreed to various
suggestions it would "open the door to and result in his receiving great
leniency, or relative leniency.... [P] Once compliance is gained, it's then
used to overcome subsequent resistance." The court rejected this
hypothesis.

During the defendant's interrogation the detectives again offered various
scenarios: "[I]f it's a justifiable homicide or its something you did out
of rage and you just weren't thinking straight then that's important for us to
get down accurately. If you're just a killer that just wants to go around to
kill people and skin cats and all that type of stuff, then by all means tell us
and we'll document that as such." "Maybe you were shooting in defense
and just, right maybe tying to scare him."

This tactic was permissible. ( People v. Holloway, supra, 33 Cal.4th at pp.
116-117.) As the Holloway court explained, "[Detective] Hash's further
suggestions that the killings might have been accidental or resulted from an
uncontrollable fit of rage during a drunken blackout, and that such
circumstances could 'make[ ] a lot of difference,' fall far short of being
promises of lenient treatment in exchange for cooperation. The detectives did
not represent that they, the prosecutor or the court would grant defendant any
particular benefit if he told them how the killings happened. To the extent
Hash's remarks implied that giving an account involving blackout or accident
might help defendant avoid the death penalty, he did no more than tell
defendant the benefit that might ' "flow[ ] naturally from a truthful and
honest course of conduct" ' ( People v. Jimenez, supra, 21 Cal.3d at p.
612), for such circumstances can reduce the degree of a homicide or, at the
least, serve as arguments for mitigation in the penalty decision. As the
appellate court explained in People v. Andersen [ (1980) ] 101 Cal.App.3d
[563,] 583, 'Homicide does possess degrees of culpability, and when evidence of
guilt is strong, confession and avoidance is a better defense tactic than
denial.' " ( People v. Holloway, supra, 33 Cal.4th at p. 116.) To the same
effect, the court found in People v. Carrington (2009) 47 Cal.4th 145, 171,
"Detective Lindsay's suggestions that the Gleason homicide might have been
an accident, a self-defensive reaction, or the product of fear, were not
coercive; they merely suggested possible explanations of the events and offered
defendant an opportunity to provide the details of the crime." Here, in
presenting appellant with different scenarios for how the crime could have
occurred, the detectives told appellant time and again that it was important
for them to know what he was thinking. This was relevant and accurate, as
appellant's mental state would bear on the determination of which offense he
could be charged with and found to have committed." Click
here for the complete decision.

(Court excludes the testimony of Dr. Richard
Ofshe)

In People
v. Ekblom, (2010) the Court of Appeal, Sixth District, California
upheld the trial court's decision to exclude the testimony of Dr. Richard
Ofshe. From their opinion the court stated that:

"Prior to the jury being impaneled, defendant made an oral motion in
limine to allow Ofshe to testify as an expert. Lempert identified Ofshe as
"a world [-]renowned expert in false confessions" who would testify
regarding "reasons why someone who is not guilty of an offense would
confess to it." The prosecution objected to the proffered testimony on the
grounds that (1) the defense had not disclosed the specific nature of the
proposed testimony; (2) Ofshe's qualifications varied from the subject matter
of his proposed testimony in that his usual testimony concerned coerced
confessions and police interrogation techniques, not the circumstances of an
admission by a defendant to a victim during a police-initiated pretext
telephone call; and (3) Ofshe's testimony was unnecessary to the trier of fact.
Defense counsel acknowledged that he had received no reports from Ofshe
concerning his anticipated testimony. In response to the court's request for an
offer of proof, Lempert indicated that Ofshe would "dispel [the]
myth" that "innocent people do not confess to having committed
crimes" and "[t]hat when badgered by an individual and by addressing
the individual's sympathy and beneficence, that a person will confess to
something [he or she] didn't do." The court ordered the exclusion of
Ofshe's testimony. It reasoned that the circumstances of the case were
dissimilar to those in which a suspect is coerced or bullied by the police into
making a false confession, and that "there are no facts that take the
question outside the [ken] of the ordinary juror.... [P] ... [P] ... There is
nothing that the jury is not capable of understanding about how that personal
pressure, emotional plea, and begging might affect someone to say something you
think will have no consequence other than to placate an obviously distraught
person." Affirmed. Click here for the
complete decision.

In State
v. Lamonica (2010) the Court of Appeal of Louisiana, First Circuit,
upheld the trial court's decision to exclude the testimony of Dr. Richard
Ofshe. The Court of Appeal stated that: "Dr. Ofshe's testimony at the
Daubert hearing suggested that there was no methodology about false confessions
that could be tested, or that would permit an error rate to be determined. In
this area of research, the result of the lack of any reliable testing format to
establish predictors of when a false confession might occur is a methodology
consisting of analyzing false confessions only after a confession has been
determined to be false.The
trial court did not err in finding Dr. Ofshe's proposed trial testimony
inadmissible under Daubert." Click here for the
complete decision.

(Trial
judge found that Ofshe's testimony did not relate to a subject beyond the
juror's common experience)

In Brown
v. Horell (2009) the U. S. District Court, E.D. California upheld the
trial court's decision to exclude the testimony of Dr. Richard Ofshe. The
District Court stated:

"After the trial court ruled that Brown's firearm use admission could come
into evidence, the defense offered Dr. Ofshe as an expert witness to explain to
the jury "how some of the interrogators' tactics had the potential of
inducing [Brown's] confession." The trial judge recognized that his
finding that the admission was voluntary did not automatically render Ofshe's
testimony irrelevant, but ultimately declined to admit it.

The trial judge found that Ofshe's testimony did not relate to a subject beyond
the juror's common experience, and thus would not be helpful to the jurors as
they assessed the credibility of Brown's firearm use admission. The judge
explained that a significant factor in his decision was the fact that Brown
made no reference to the interrogator's techniques when he retracted the
firearm use admission, nor did he indicate any unsureness as to why he gave the
false statement. Rather, Brown unequivocally stated that he
"confessed" because someone had threatened to shoot his girlfriend if
he did not take responsibility. In light of Brown's explanation for the alleged
false admission, the judge reasoned that Ofshe's opinion regarding
interrogation techniques would not assist the jury in assessing the credibility
of the admission. Brown claims that this evidentiary ruling deprived him of his
constitutional right to present a complete defense.

To the extent the jury decided to rely on Brown's admission, the sole question
for their consideration was whether it was true. Ofshe was not in a position to
offer anything useful in this regard. He had no expert opinion whether Brown's
admission was true (RT at 48), and had no special expertise as to the truth or
falsity of the remainder of Brown's statements. (RT at 56.) Upon the record of
this case, the exclusion of Ofshe's testimony did not have had a substantial
and injurious effect on the jury verdict at Brown's trial. See Brecht, 507 U.S.
at 637." Click
here for the complete opinion.

(Judge rejects Dr. Ofshe testimony)

In Smith
v. State (2009) the Court of Appeals of Alaska upholds the trial
court's decision to reject the testimony of Dr. Richard Ofshe. From their
opinion:

"Smith argues that Sergeant Kenny offered Smith a job as an informant,
including an agreement that Smith would receive a full pardon after serving 5
years' imprisonment. Essentially, Smith claims to have confessed to murdering
Enzler and Bellamy to "establish his credibility" so that he could
serve as an informant.

Judge Link also made the following specific findings related to Smith's
testimony that he had received an agreement to act as an undercover informant:
[N]o agent of the State ever offered Smith a deal to provide information to the
State. No agent of the State ever offered Smith leniency or any other inducement
to encourage him to give interviews or statements. Specifically, Smith's
statements regarding a deal ... to the effect that he would serve five years
and then receive a full pardon, or that he would work as an informant ... is
fabrication on Smith's part. Smith ... offered to provide information [several
individuals], but these offers were never accepted by the State. Smith also
argues that Judge Link's ruling was clearly erroneous because he failed to
consider the testimony of Dr. Richard Ofshe. "[W]here there is a direct
conflict in testimony, it is crucial that the trial court summarize the
evidence, identify factual conflicts and resolve them on the record."

Dr. Ofshe testified that the interview transcripts suggested that Smith
appeared to be motivated to work as an undercover agent. He opined that several
aspects of the transcripts did not make sense without there having been some
prior agreement between Smith and the officers. Nevertheless, Dr. Ofshe did not
raise a direct conflict in the evidence about what happened between Smith and
the investigating officers. He merely offered his opinion about how to resolve
a latent conflict.

A trial court "ordinarily has no obligation to accept expert testimony
when it finds other evidence more persuasive." Thus, Judge Link was free
to make an independent evaluation of the facts on which Dr. Ofshe relied. FN11
Based on the same evidence evaluated by Dr. Ofshe, Judge Link found that Smith
was not credible and that the purported off-the-record deal was fabricated. In
view of Judge Link's detailed findings, his failure to mention Dr. Ofshe by
name was not clearly erroneous." Click here for the
complete opinion.

(Dr. Richard Ofshe testimony limited)

In Contreras v. State (2009)
the Court of Appeals of Texas ruled on the following - Appellant's first two
issues involve the expert testimony of Dr. Richard Ofshe. In Point of Error
One, Appellant challenges the trial court's ruling that this expert witness
could not relate the specific facts of the case to his expertise and knowledge.
In Point of Error Two, Appellant contends the trial court erred when it ruled
Dr. Ofshe could not testify about ultimate issues to be determined by the jury.

The trial court ruled that:

"He can testify as to the general basis of interrogation methods.
Obviously, we know they exist. We know they existed in this case. We know it
exists for the Police Department. You-all tendered over those documents. But,
Mr. Ponder, I will tell you: He will not testify as to the veracity of any
statement. He will not testify as to the voluntariness of any statement, and he
will also not testify as to any truth or false confession."

The Court of Appeals found that "We conclude that Dr. Ofshe's testimony
was not beyond that of the average juror's knowledge and experience and that
his testimony would not help the jury understand the evidence or determine a
fact issue. The jury was equally competent to form an opinion about the
ultimate fact issues, namely the voluntariness of Appellant's second statement.
Because Dr. Ofshe's testimony impermissibly offered a direct opinion as to the
truthfulness of Appellant's statement, we find no error in its exclusion. We
overrule the first two points of error." Click
here for the complete opinion.

("Dr. Ofshe's testimony did not contain
'sufficient evidence to confirm that the principles upon which the expert based
his conclusions are generally accepted by social scientists and psychologists
working in the field.)

In People
v. Rosario (2008) this case the court considered the defense request to
offer Dr. Richard Ofshe as an
expert witness on false confessions. The court concluded, "Dr. Ofshe's testimony did not contain
'sufficient evidence to confirm that the principles upon which the expert based
his conclusions are generally accepted by social scientists and psychologists
working in the field. Therefore, his anticipated testimony that psychological
coercion was employed during the interrogation of defendant, Argelis Rosario,
which in his opinion would induce a person to falsely confess, does not meet
the Frye standard for admissibility." Click here for the
complete opinion."

(Dr.
Ofshe testimony limited)

In Fox,II, Appellee-Plaintiff v
Indiana (2008) the defense counsel was permitted to question Dr. Ofshe generally about coerced
confessions, but not to ask questions about this particular case. Fox contends
the trial court erred in so limiting the scope of his expert witness's
testimony. The Court of Appeals stated "The jury was also permitted to view
a videotape of Fox's entire interrogation. Therefore, the jurors were fully
able to apply the concepts about which Dr.
Ofshe testified to the interrogation that produced Fox's confession.
This is all Dr. Ofshe's
permissible testimony could have accomplished. There was no reversible error
here." Click
here for the complete opinion.

"During trial, defense psychological expert Dr. Richard Ofshe testified
about interrogation tactics used by police in order to elicit confessions from
suspects and factors that contribute to suspects making false confessions.
During closing argument, the prosecutor read an excerpt from a law review
article in which Ofshe was quoted as saying: " 'While a guilty party will
likely be very unhappy that he is being accused and confronted with evidence
that supports the accusation, he is somewhat insulated from shock because he
has always been aware of possible detection and can understand that he has been
caught. An innocent suspect is likely to experience considerable shock and
disorientation during interrogation because he is wholly unprepared for the
confrontation and accusations that are at the core of the process and will not
understand how an investigator could possibly suspect him.'

The prosecutor then proceeded to argue, "[w]hen you look at this videotape
[of the defendant's interview with Campuzano], ask yourself that question.
Where is the shock of being accused of these horrific crimes? ... There isn't
because the defendant knew what he did, period. And because this evidence is so
compelling, because it is so compelling, the defense is grasping at straws....
And all they need to do is fool one of you. If they fool one of you, then the
defendant is not held responsible."The jury found the defendant guilty.Click here for the complete
decision.

(Dr.
Ofshe testimony not allowed because it did not contain 'sufficient evidence to
confirm that the principles upon which the expert based his conclusions are generally
accepted by social scientists and psychologists working in the field)

In Lyons v. State (2007) Lyons sought to have
Dr. Richard Ofshe testify as an expert witness on false confession theory.
Following a hearing outside the jury's presence at which Ofshe testified, the
trial court ruled that it would not allow the testimony based upon the evidence
in the case, because such theory had not reached a verifiable stage of
scientific certainty, and because whether Lyons's inculpatory statements were the
results of threats or coercion was a matter the jury could discern for itself.
"This Court further observed in Riley that the admission of expert
testimony based on the theory of false confessions was premature and unreliable
inasmuch as there was insufficient scientific support and too many unanswered
questions regarding such theory. Id. at 682-683(4), 604 S.E.2d 488. In short,
false confession theory does not satisfy the evidentiary test in criminal cases
set forth in Harper v. State, 249 Ga. 519(1), 292 S.E.2d 389 (1982)." Click here for the complete
decision.

(The
jury will not be, and cannot be, assisted in any way by Dr. Ofshe's views)

In US v. Mamah (2002) the US District Court, N.D.
Illinois granted the government's motion to bar Dr. Richard Ofshe's testimony,
stating that "The jury will not be, and cannot be, assisted in any way by
Dr. Ofshe's views in determining whether Mr. Mamah's version of the
interrogation is more accurate than that of the interviewing agents, assuming
material conflict. It is a classic jury function to determine the credibility
of witnesses. That Dr. Ofshe can say some people confess falsely when faced
with certain stimuli is not relevant to the jury's credibility determination
function. Nor can Dr. Ofshe testify, as part of his work, what the specifics of
the interrogation consisted of as related to him by Mr. Mamah. Mr. Mamah's
statements to him about the interview would be inadmissible hearsay and could
not be disclosed by Dr. Ofshe to the jury pursuant to Rule 703. Beyond that,
Dr. Ofshe employs mere conclusory statements in his report about tactics used
without specifics or elaboration. As is recited in Hall at p. 1344, conclusory
statements without any explanation why the expert can contribute to the jury's
understanding of the subject are also subject to exclusion. That is also the
situation here." Click
here for the complete decision.

(Dr.
Ofshe attempts to discredit the Reid Technique)

In State v. Tapke (2007) the Court of
Appeals of Ohio upheld the defendant's confession which was obtained by an
officer who was trained in The Reid Technique. Dr. Richard Ofshe testified
about false confessions and attempted to describe The Reid Technique. The
jury subsequently rejected his testimony and "chose not to discredit it
[the confession]."

It is interesting to note that in his testimony Dr. Ofshe testified that as
part of The Reid Technique interrogators are taught the following:

"So what police have learned to do is to communicate the message through
a series of suggestions * * * the idea being to communicate the understanding
that there's a deal on the table, but without ever explicitly saying here's
the deal." He used the example of a person accused of GSI. He testified
that the police would say something like this to a suspect: "[Y]ou're
not a sexual predator; you're someone who needs treatment. What would you rather
do, go to prison as a sex offender, or get some therapy in treatment."

It is interesting to note that the exact opposite is the case - we teach not
to make any statements that refer to punishment, threats or promises of
leniency (see Criminal Interrogation and Confessions, 4th ed., 2001), and in
our training seminars we highlight the case, Com. v. DiGiambattista, 813
N.E.2d 516 (2004), in which the Massachusetts Supreme Court indicated that
"what seemed to disturb the Court the most was the apparent reference to
counseling which they felt "implicitly suggested to him that
"counseling" would be an appropriate avenue for him to pursue after
making a confession." In other words, if he confessed he would get
counseling instead of jail." This is exactly what we teach not to do.Click here for the complete
decision

(Military judge found that Dr.
Ofshe's theory regarding coercive interrogations was not based on rigorous
scientific analysis or even subject to scientific testing but was rather Dr.
Ofshe's own subjective review of a group of particularly selected cases)

In US v Wilson (2007) the U.S.
Navy-Marine Corps Court of Appeals upheld the trial judge's decision to exclude
Dr. Richard Ofhe's testimony.

In their decision the Court of Appeals stated:

"In essence, the military judge found that Dr. Ofshe's theory regarding
coercive interrogations was not based on rigorous scientific analysis or even
subject to scientific testing but was rather Dr. Ofshe's own subjective
review of a group of particularly selected cases. By way of example, at one
point Dr. Ofshe testified that his theory concerning the impact of certain
police interrogation techniques on the danger of false confessions was as
intuitive as the fact that the sun will come up each day. Essentially he
argues that we can't necessarily prove causation but we just know how it
works. Id. at 5, Record at 1202.

The military judge's finding that the proffered theory was not scientifically
sound was wholly supported by the affidavits of Professor Cassell and LtCol
Slicner. Professor Cassell, after noting that he is familiar with Dr. Ofshe's
research, opines that Dr. Ofshe's theories "have not been sufficiently
tested ... have an unacceptably high rate of error ... depart from accepted
standards ... and have not been accepted in the relevant scientific
community...." Appellate Exhibit LXVII at 2. LtCol Slicner, opining more
generally on research into the causes of false confessions, observes that to
her knowledge there are no "scientifically reliable studies" that
associate particular personality traits or the nature of the interrogation
with false confessions. She opines that one cannot "hold so many unusual
and diverse variables constant in order to study the effect of one or more
clearly identifying variables." Appellate Exhibit LXVIII at 2.

Having determined that Dr. Ofshe's theory was not based on sufficient
scientific rigor to be reliable and that it was not widely accepted within
the relevant scientific community, the military judge went on to rule that
the witness could testify only to his rather commonsensical opinions that
"false confessions do occur" and that "some persons have,
after certain techniques have been used, made false confessions."
Appellate Exhibit LXXII at 5. The military judge then found, as the appellant
asserts, that the opinions Dr. Ofshe could legitimately testify to were not
beyond the experience of the average member and therefore of such minimal
value as to be substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. The underlying basis for the
military judge's decision, however, was that Dr. Ofshe's expert opinion
testimony was not scientifically reliable. We find, therefore, that there was
ample evidence supporting the inadmissibility of Dr. Ofshe's expert testimony
and that the military judge did not abuse his discretion when he excluded
it."Click
here for the complete decision

(In
this case Dr. Ofshe testimony is irrelevant)

In Staye v.
Angel Torres (2006) the Court of Appeals of Ohio, Eighth District,
Cuyahoga County rejected Torres claim "that the trial court erred by
excluding the testimony of interrogation expert, Dr. Richard Ofshe. The trial
court excluded Dr. Ofshe's testimony based on the fact his opinion was
irrelevant to the facts of the case. We agree. Dr. Ofshe specializes in
determining the voluntariness of a confession. However, in the instant case,
Torres did not claim his confession was involuntary, but claims he never gave
a confession and that the detective fabricated his confession. Therefore, Dr.
Ofshe's testimony as to whether the confession was voluntary was irrelevant.
In fact, Dr. Ofshe even stated he had never previously testified whether a
confession was fabricated by a detective."Click here for the complete
decision.

(Court
rejects Dr. Ofshe opinion)

In People v.
Ladell Deangelo Brown (2006) the Court of Appeal, Third District,
California affirmed the conviction of Brown who had admitted that he had shot
the victim, Victor Jones. At trial Dr. Richard Ofshe "testified about
research showing that modern interrogation techniques lead to false
confessions. Ofshe opined that Overall [the investigating officer] induced
defendant to admit he shot Victor accidentally or in self-defense by leading
defendant to believe he would receive leniency. He noted that Overall never
told defendant he remained subject to serious criminal liability under the
felony-murder rule. Citing the totality of the circumstances, the court ruled
that defendant's admissions were voluntary and denied the motion to
suppress."Click here for the complete
decision.

(Jury
rejects testimony of Dr. Ofshe in employee theft prosecution)

In People v. Amy
Marie Garvin (2005) the defense offered expert testimony from Dr.
Richard Ofshe who testified that "a poorly done interrogation could
produce a false confession. Poorly trained interrogators use false
"evidence ploys" in conjunction with inappropriate psychological
"motivators" to coerce false confessions without knowing that the
confessions are false. These interrogators focus only on producing a
confession without thinking about the guilt or innocence of the person
interrogated." The jury rejected this testimony and found the defendant
guilty.Click
here for the complete decision

Pragmatic implication is a theory proposed by Professor Saul Kassin which
posits that a subject of an interrogation may cognitively perceive threats or
promises even though the investigator never threatened the suspect or offered
the suspect a promise of leniency. In the case of People v. Benson (2010)
the Court of Appeal, Third District, California the premise of this theory was
rejected. In this case the court found the following:

"Here, Detective Rodriguez did tell defendant there was "a big
difference between ... someone getting hurt and trying to shoot someone."
However, the detectives made no promises or representations that defendant's
cooperation would garner more lenient treatment or lesser charges. "No
specific benefit in terms of lesser charges was promised or even discussed, and
[the detective's] general assertion that the circumstances of a killing could
'make[ ] a lot of difference' to the punishment, while perhaps optimistic, was
not materially deceptive." ( People v. Holloway (2004) 33 Cal.4th 96,
117.) The general assertion that the circumstances of a killing could make a
difference was not materially deceptive. It is not deceptive to state that an
accomplice to murder may be better off than the shooter. ( People v. Garcia
(1984) 36 Cal.3d 539, 546-547.)

In addition the court addressed the issue of giving the suspect false
information:

"Nor does the detectives' use of false information render defendant's
admissions involuntary. Lies told by officers to a suspect during questioning
may well affect the voluntariness of a confession, but they are not per se
sufficient to render a confession involuntary. Where the deception by the
officer is not of a type reasonably likely to procure an untrue statement, a
finding of involuntariness is unwarranted. ( People v. Farnam (2002) 28 Cal.4th
107, 182 ( Farnam ).) Courts prohibit only those psychological ploys that,
under the totality of circumstances, are so coercive they tend to produce a
statement that is both involuntary and unreliable. ( Ray, supra, 13 Cal.4th at
p. 340.)

In Farnam, supra, 28 Cal.4th 107, the court found the defendant's confession to
an assault and robbery was voluntary. The officers falsely told the defendant
that his fingerprints had been found on the victim's wallet. ( Id. at pp.
182-183.) Nor did the court find a confession coerced when an officer made
false statements regarding evidence the officer said tied the defendant to a
murder. ( People v. Thompson (1990) 50 Cal.3d 134, 167.)

In State
v. Cope (2009) the Court of Appeals found that the trial court did not
err when they excluded the testimony of the defendant's false confession expert
about two cases of coerced internalized false confessions and "we find no
error by the trial court in denying Cope's motion to suppress his
confessions."

"In this case, Cope presented an expert, Dr. Saul Kassin, who testified
regarding false confessions. Dr. Kassin testified as to the interrogation
techniques used by the police in obtaining false confessions and the techniques
used in this case: (1) false evidence-the officers telling Cope he failed the
polygraph; (2) positive confrontation-the officers claiming they knew Cope did
it; (3) the officers' refusals to accept Cope's denials of guilt even though he
agreed to a polygraph and waived an attorney; (4) minimization-the officers
suggesting the crime was accidental; and (5) interrogation while Cope was
traumatized and tired.

Dr. Kassin proffered testimony about Peter Reilly, who falsely confessed to
murdering and sexually assaulting his mother, and Gary Gauger, who falsely
confessed to murdering his parents. In both of these cases, the defendants
denied involvement, were administered polygraphs and told they failed, believed
they must have somehow committed the crimes, and confessed. The trial court
refused to allow Dr. Kassin to testify regarding specific cases of false
confession unless they were "on all fours" with this case and
ultimately refused to allow the testimony. "Click here for the
complete decision.

(Expert
testimony on false confessions does not pass the Frye test of general
acceptance in its field)

In Bell, Petitioner v. Ercole, et al.(2008)the US
District Court stated in their opinion that "Justice Cooperman denied the
defense's request to admit expert testimony (Saul Kassin), concluding that the jury could determine the
voluntariness of Bell's statements based on the facts presented and that expert
testimony on false confessions does not pass the Frye test of general
acceptance in its field. People v. Bell, Ind. No. 128/97, slip op. at 3-4
(N.Y.Sup.Ct. Apr. 28, 1999). This decision is consistent with a long line of
New York cases, of which the most recent, People v. Wiggins, 16 Misc.3d 1136
(N.Y.Sup.Ct.2007), contains a particularly thoughtful discussion of the
issue." Click
here for the complete opinion.

"A hearing was held before the judge to consider the admissibility of
the testimony of Professor Saul Kassin. The professor was offered by the
defendant as an expert witness on the subject of the psychology of police
interrogations and confessions. The judge refused to admit his testimony
because it did not meet the "general acceptance" or
"reliability" criteria required by Commonwealth v. Lanigan, 419
Mass. 15, 25, 641 N.E.2d 1342 (1994), and also because it concerned issues
within the knowledge and experience of laypersons."

"Nevertheless, on cross-examination the professor conceded that there
was no empirical data on the number of false confessions, and that there is
no scientific basis for distinguishing true from false confessions. Indeed,
he admitted that one of his articles stated, "Further research in the
field is sorely needed.... [T]he current empirical foundation may be too
meager to support recommendations for reform or qualify as a subject of
scientific knowledge." The professor also said that, in fact, in mock
jury experiments, jurors were able to distinguish accurately voluntary from
involuntary confessions. He agreed that he could not say that lay people
could not accurately assess the techniques that would cause false
confessions."

"The judge concluded that Kassin's testimony did not meet the
requirements set forth in the Lanigan case. We agree. As the judge stated,
Kassin conceded that his opinions are not generally accepted, require further
testing, and are not yet a subject of "scientific knowledge." One
of his own publications admitted as much. Accordingly, his proposed testimony
that certain interrogation techniques have previously produced false
confessions does not meet either the general acceptance or reliability
criteria established by the Lanigan case. The judge did not abuse her
discretion in refusing to admit Professor Kassin's testimony"Click
here for the complete decision.

(Kassin
testimony limited)

In State v. Myers (2004 ) the Supreme
Court of South Carolina upheld the admissibility of a confession by
investigators utilizing The Reid Technique, and also found that there was no
error when the trial court limited the testimony of Dr. Saul Kassin.Click
here for the details of the decision.

(Testimony
of Dr. Deborah Davis on false confessions excluded by the court - minimally
probative in this case because it did not go beyond the common experience of
the jurors)

In People v. Durst (2014) the Court of
Appeal, Third District, California upheld the lower court's decision to exclude
the testimony of Dr. Deborah Davis on the issue of false confessions. From their opinion the Appeals Court
stated:

"The court held a hearing on whether to admit the expert
testimony concerning false confessions, which included a 250–slide
PowerPoint presentation prepared by the expert. The court informed defense
counsel that the expert would not be allowed to use the 250–slide
presentation under Evidence
Code section 352 because it was in the form of a lecture, not
testimony of an expert.

The trial court recognized Dr. Deborah Davis as an expert in
the field of false confessions. Dr. Davis testified at the Evidence
Code section 402 hearing that (1) suspects sometimes falsely confess
what they have not done and (2) many people mistakenly believe that no suspect
falsely confesses. Circumstances such as interrogation techniques (presenting
false or misleading evidence or using polygraph tests, for instance), as well
as the length of the interrogation, sleep deprivation, high stress, and
distrust of one's own memory may result in a false confession.

In summary, the court found that the evidence was minimally
probative in this case because it did not go beyond the common experience of
the jurors. The court noted various parts of the testimony that would be too
general to be helpful or would be confusing. In fact, the jurors had been asked
during voir dire concerning their acceptance of the phenomenon of false
confessions and had indicated their acceptance. The minimal probative value was
substantially outweighed by the danger that the evidence would confuse or
mislead the jury and consume an undue amount of time.

The California Supreme Court, in Linton, recently
considered a claim that exclusion of expert testimony about false confessions
was an abuse of discretion and violated the defendant's right to present a
defense. The Linton court rejected the claim, concluding that where
there was a "dearth of evidence indicating a false admission or confession," as
well as a "multitude of corroborative evidence ... that suggested defendant's
admissions and confession were true." ... Under these circumstances, "it fell
within the trial court's broad discretion to determine that [the expert's]
proffered testimony had, at most, minimal probative value, which was
substantially outweighed by its likely undue consumption of time. [Citations.]"
( Ibid.)

Likewise, here, there was a dearth of evidence indicating
that defendant's confession was false. The details of his confession matched
the facts of the crime produced at trial. Defendant admitted that he entered
the house, lit the candle, and opened the gas valve. The candle was from
defendant's house, and defendant was present at the scene during the time when the
acts occurred. Defendant readily admitted that he did not like Liu, and he had
already stolen items from the house.

This is not a close case in which evidence concerning
whether police interrogation tactics could produce a false confession would
have been helpful to the jury. Therefore, the trial court did not abuse its
discretion in excluding the expert testimony, and the exclusion of the
testimony did not violate defendant's right to present a defense." Click here for the complete decision.

In Commonwealth
v. Harrell (2013) the Superior Court of Pennsylvania found that the
state constitution does not require the recording of interrogations, stating
that, "In...this court held that
custodial interrogations do not need to be recorded to satisfy the due process
requirements of the Pennsylvania Constitution.... The majority of states, with
the exception of Alaska and Minnesota, have not adopted a rule requiring police
to record interrogations... Nor has the United States Supreme Court been asked to
determine whether the United States Constitution requires the recording of
custodial interrogations as a matter of federal due process... This court
determined that the Pennsylvania Constitution does not require contemporaneous
recording of statements and that the adoption of a rule requiring
contemporaneous recording of custodial interrogation should be left to the
Pennsylvania Supreme Court or the General Assembly, not an intermediate
appellate court."

In this
same case, regarding the testimony of a false confession expert, the court
stated the following:

"Recently,
....we upheld the trial court's denial of the
defendant's request to call Dr. Debra Davis, an expert in the field of false
confessions:

[I]f the expert is only
testifying generally about the fact that false confessions happen, that is well
within the grasp of the average layperson and expert testimony would not be
required under Rule 702. The components of a false confession,
according to Dr. Davis, include factors such as the interrogation tactics
employed, the training of the law enforcement personnel involved, and the
stress tolerance of the suspect. This [c]ourt found that testimony concerning
these factors can be elicited (and attacked) through the testimony of other
witnesses and is capable of being understood by the average juror. The jury can
then make its own determination as to the weight afforded to the defendant's
confession. Therefore, Dr. Davis' testimony was not proper because expert
testimony is inadmissible when the matter can be described to the jury and the
conditions evaluated by them without the assistance of one claiming to possess
special knowledge upon the subject.

Similarly, here, in addition
to identifying various problems with Dr. Ofshe's methodology, the trial court
opined that the issue of false confessions was not beyond the ken of the
average layperson:

First, the Court is not
convinced that any specialized knowledge is required for jurors to understand
the proposition that a person possessing any of a number of unique factors (mental disability, fatigue, hunger, tender age, propensity
toward acquiescence to authority figures etc.) may be more susceptible to
police interrogative techniques. Further, the jurors would certainly be able to
evaluate any evidence or arguments presented at trial by the defense to advance
a theory that the conditions of [appellant]'s interrogation, the techniques
used by police, or the personal characteristics of [appellant] had an impact on
the veracity or voluntariness of [appellant]'s confession without the
assistance of the proffered expert testimony. If anything, the testimony could
confuse the issue by suggesting causal relationships which are not borne out by
the research actually conducted..... We agree and find that the trial court did
not abuse its discretion by precluding Dr. Ofshe's testimony."Click
here for the complete decision.

(Court
excludes the testimony of Dr. Debra Davis on the issue of false confessions)

In Commonwealth v. Szakal (2012)
the Superior Court of Pennsylvania upheld the lower court's decision to exclude
the testimony of Dr. Debra Davis on the issue of false confessions, stating in
their opinion that "her testimony would not be of any assistance to the
triers of fact "given that the jurors, during voir dire, admitted that
they already knew false confessions occur."

"... Basically, the defense in this case was that [Appellant] lied in his
recorded statement to police about his role in the murders of Mr. and Mrs.
Springer. He claimed to be telling the truth when he took the stand and
implicated his co-defendant, Mr. Tartt, as the trigger man. In other words, [Appellant]
asked the jury to believe that he falsely confessed to the murders. The issue
then, is whether the average juror, in this case, needed to be told that false
confessions occur? This [c]ourt found that the jury did not; as almost every
juror in the pool indicated that [he or she] believed that false confessions do
occur. In fact, defense counsel raised that point in his closing argument.

"Moreover, if the expert is only testifying generally about the fact that
false confessions happen, that is well within the grasp of the average
layperson and expert testimony would not be required under Rule 702. The
components of a false confession, according to Dr. Davis, include factors such
as the interrogation tactics employed, the training of the law enforcement
personnel involved, and the stress tolerance of the suspect. This [c]ourt found
that testimony concerning these factors can be elicited (and attacked) through
the testimony of other witnesses and is capable of being understood by the
average juror. The jury can then make its own determination as to the weight
afforded to the defendant's confession. Therefore, Dr. Davis' testimony was not
proper because expert testimony is inadmissible when the matter can be
described to the jury and the conditions evaluated by them without the
assistance of one claiming to possess special knowledge upon the subject."Click here for the
complete decision.

In People v.
Gallo (2008) Dr. Deborah Davis testified for the defense at the
suppression hearing (click
here for a copy of her Power Point slides) but the court
rejected the effort to suppress the confession, stating that the interrogator
"used a technique [Reid Technique] he learned in his police training,
and his use of it followed what the courts have deemed to be
permissible." Click
here for the complete decision.

(Dr.
Davis's testimony did not meet the standards for relevance or reliability
required by Daubert)

In US v. Benally (2008)the defendant
notified the government he planned to call Dr. Deborah Davis, a professor of
psychology at the University of Nevada at Reno, as an expert witness on false
confessions. Mr. Benally offered her as "an expert in the field of
social psychology" and "the subjects of confession, interrogation
techniques ... [,] and the ability of those techniques to cause people to
confess." Mr. Benally offered Dr. Davis's testimony on two subjects: (1)
whether false confessions occur; and (2) why people confess falsely. Dr.
Davis had never examined Mr. Benally, and would not offer an opinion as to
whether he confessed falsely.

After a Daubert hearing, the district court ruled that Dr. Davis's testimony
was inadmissible, concluding that it did not meet the standards for relevance
or reliability required by Daubert. Click here for
the complete opinion.

(Court
excludes the testimony of defense expert Dr. Bruce Frumkin because it would
"lead to confusion and misunderstanding.")

In State v. Ackerman (2012)
the Court of Criminal Appeals of Tennessee upheld the lower court's decision to
exclude the testimony of defenses expert Dr. Bruce Frumkin "about the
defendant's susceptibility to suggestion."

"With regard to his potential testimony about the defendant's
susceptibility to suggestion, Doctor Frumkin testified that he performed a
"comprehensive clinical interview" of the defendant and administered
a test to measure intelligence quotient ("IQ"), a personality
inventory test, a personality factor test, and "the Gudjohnsson."

".... Doctor Frumkin reiterated that he would not offer an opinion on
whether the defendant's admissions to Ms. Ackerman and Detective Robinson were
false. He said that he would instead provide the jury with psychological
information about the defendant that would explain why he was more likely to
provide false or inaccurate information in the face of that type of
questioning. He said that he had no opinion on the accuracy of the defendant's
statement, that he would not testify "in terms of the likelihood he gave a
false statement or not," and that his only testimony would be that the
defendant possessed psychological traits that made him more vulnerable to
suggestion. He characterized his testimony as "additional data that [the
jury] should look at [to] make a better determination of how much weight to
give to what that person is saying."

At the conclusion of the hearing, the trial court took the motion under
advisement and, in a later-filed written order, ruled that Doctor Frumkin would
not be permitted to testify about the defendant's susceptibility to suggestion
because of "the loose connection between D[octor] Frumkin's knowledge and
experience and the facts in this case" and because his testimony would not
substantially assist the trier of fact. The court also concluded that Doctor
Frumkin's testimony would "lead to confusion and misunderstanding."Click here for the
complete decision.

(Court finds testimony from Dr. Bruce Frumkin inadmissible on whether the
defendant has a propensity to make a false statement)

In State v. Pate (2011) Court
of Criminal Appeals of Tennessee upheld the lower court's ruling to restrict
the testimony of defense expert Dr. Bruce Frumkin. The Appeals court found that
"Where expert testimony is merely an iteration of what would be within the
jurors' common sense, the admission of such evidence does not assist, much less
substantially assist, the trier of fact to understand the evidence or determine
a fact at issue. Accordingly, a court would not err by excluding an expert
whose testimony consisted solely of providing a dressed-up and credentialed
declaration of what would be already safely within a juror's common-sense
understanding."Click here for the
complete decision.

(Court rejects forensic
psychologist Bruce Frumkin's testimony as to the defendant's ability to make a
knowing and intelligent waiver of his rights)

In State v. Keys (2010) the
Court of Appeals of Iowa upheld the lower court's decision to reject the
testimony of forensic psychologist Bruce Frumkin on the intellectual capacity
of the defendant to understand and waive his rights.

"Keys asserts he did not freely decide to forgo his Miranda
rights....He relies on the testimony of forensic psychologist Bruce Frumkin,
who opined it was "unlikely [Keys] would have been able to fully make a
knowing and intelligent waiver of his Miranda rights." Frumkin
based his opinion on five factors: (1) Keys's educational level, (2) the
results of an IQ test, (3) Keys's overall psychological functioning, (4) the
results of comprehension tests, and (5) Keys's history of drug use.

With respect to the first two factors, it is undisputed that Keys was not an
academic stand-out in high school, dropped out in the eleventh grade, and had
IQ scores at the low end of the testing range. These facts, however, did not
automatically render Keys incapable of waiving his Miranda rights. See State
v. Fetters, 202 N.W.2d 84, 89 (Iowa 1972). Indeed, while Frumkin opined
"that people of lower intelligence don't understand Miranda rights
as well as people of higher intelligence," he conceded there is no cutoff
IQ score that renders someone incapable of waiving his or her Miranda
rights.

This brings us to the third factor, Keys's overall psychological functioning.
This factor also does not support a finding that Keys was incapable of waiving
his Miranda rights. It is true that Keys had a history of anxiety,
preoccupation with intrusive thoughts, and a propensity for "cognitive
slippage," which Dr. Frumkin defined as "some temporary inefficiency
in processing information." However, these deficits were not apparent in
the video recordings. To be sure, Keys had trouble coming up with certain
descriptive words, but he responded quickly to the officer's questions and
comments and his reactions were appropriate for the circumstances.

The fourth factor cited by Dr. Frumkin, the results of tests to measure Keys's
current comprehension and appreciation of Miranda rights adds little to
the analysis, as Dr. Frumkin admitted Keys did "relatively well" and
"currently ha [d] a good understanding of the Miranda rights and
currently is able to make an intelligent use of the Miranda
rights." While Frumkin suggested the positive test results reflected
Keys's efforts to educate himself after the interrogation, this suggestion
belies his earlier assertion that Keys lacked the education and IQ to process
the Miranda warnings at the time of the custodial interrogations.

The final factor cited by Dr. Frumkin, Keys's drug use, was not evident on the
video recordings. Dr. Frumkin acknowledged this and the State's expert
confirmed it. Additionally, all the officers who encountered Keys testified
they did not believe the defendant was under the influence of drugs.

On our de novo review, we agree with the district court that Keys possessed
"sufficient intellectual capacity to understand Miranda warnings
and to validly waive those Miranda warnings ."Click here for the
complete decision.

(Court determines the jury can assess a statement's reliability without
the need for expert testimony from Dr. Bruce Frumkin)
In State
v. Bennett (2007) the Illinois First District Apellate Court found that
the proposed expert testimony from Dr. Bruce Frumkin on the defendant's
suggestibility was not necessary in order for the jury to assess the
defendant's statement:

In this case, the circuit court held that the portion of Dr. Frumkin's
testimony regarding his assessment of defendant's interrogative suggestibility
was not beyond the common knowledge of lay persons and would not aid the trier
of fact in reaching its conclusion. The court permitted defendant to comment
upon the evidence during voir dire, opening statements, trial and closing
arguments, and stated that the trier of fact could rely on its own common sense
and experience in life without expert testimony in determining the issue of
suggestibility. Defendant has not shown an abuse of discretion in excluding the
expert testimony in this case.

Similarly, Dr. Frumkin's testimony that defendant was susceptible to police
interrogations and suggestions based on his intellectual abilities was not
beyond the understanding of ordinary citizens, nor a concept difficult to
understand. In addition, the circuit court did not preclude defendant from
challenging the credibility and weight of his confession. Rather, the court
specifically stated that defendant could comment upon the evidence and the
issue of suggestibility throughout defendant's trial.

Further, the jury received testimony in this case regarding defendant's school
and intellectual performance. Defendant had a full opportunity to cross-examine
the police officers and prosecutors that interrogated him about their
techniques. The jury heard testimony regarding the conditions of defendant's
interrogation, the length of time defendant was interrogated, the receipt and
waiver of Miranda rights, and the content of the police questions and
defendant's statements. The jury viewed defendant's videotaped confession and
could assess the format in which the questions were presented and answers
provided. It was reasonable for the trial court to conclude that the jury could
decide the issue of the statement's reliability using its common knowledge and
could have reached the same conclusion as Dr. Frumkin based on the testimony of
the other witnesses and evidence. Consequently, the jury would not be aided by
Dr. Frumkin's testimony.
Accordingly, we cannot say that the trial court abused its discretion by
excluding the testimony of Dr. Frumkin.Click
here for the complete decision.

(Court
finds test on suggestibility was "not a valid and reliable test to
determine a person's suggestibility to admit to a crime")

In People
v. Nelson (2009) the Illinois Supreme Court upheld the trial court's
decision to refuse to allow Dr. Bruce Frumkin to testify concerning his use of
the Gudjonsson Suggestibility Scale (GSS) in evaluating defendant's
susceptibility to giving a false confession. The trial court found "that
the test was not a valid and reliable test to determine a person's
suggestibility to admit to a crime. The court found it difficult to accept that
a test taken nearly three years after the murders regarding a subject that was not
autobiographical in nature could be presented as evidence. The court further
stated that it was unaware of any court in Illinois that had allowed the GSS to
be presented to a jury on the issue of the defendant's interrogative
suggestibility. Thus, the court concluded that the GSS did not meet the
standard for admissibility under Frye."Click here for the
complete decision.

In US v.
Bell (2013) the U.S. Army of Criminal Appeals upheld a lower court's
decision to exclude the testimony of Dr. Christian Meissner, stating that, "The
defense counsel did not provide any evidence that the appellant was unusually
susceptible to coercion or had any abnormal mental or emotional problems that
might make him more vulnerable to confessing falsely. The military judge found
the defense could not articulate exactly what Dr. Meissner could do for the
defense theory, and characterized the use of the expert as akin to a "fishing
expedition." Click
here for the complete decision.

(Military
court limits the testimony of Dr. Christian Meissner on the defendant's
"heightened suggestibility and manipulation" as a result of his
interrogation)
In US v. Markis (2009) the US
Army Court of Criminal Appeals ruled that "any legal error attached to the
military judge's limitation on Dr. Meissner's testimony does not rise to the
level of a constitutional magnitude and appellant was not denied "a
meaningful opportunity to present a complete defense."

In
this case, the military judge informed civilian defense counsel before Dr.
Meissner testified, "You can't ask him any hypotheticals, unless you run
it by me ... and I better not hear any hypothetical questions about the facts
in this case from that guy." The record of trial demonstrates the military
judge clearly did not want the witness to opine that appellant's confessions
were merely the product of his suggestibility, as this would "usurp the
exclusive function of the jury to weigh the evidence and determine
credibility." United States v. Brooks, 64 M.J. 325, 328 (C.A.A
.F.2007). Specifically, the military judge expressed his concerns that "he
is interposing his own judgment for that of the members" and "you're
asking him to interpose his own judgment about whether or not the interrogation
conducted by CID may have been suggestive or not. That's not for him to say.
That's for the members to decide."Click here for the
complete decision.

In Dodson
v. State (2008) the the jury convicted Kira Lynn Dodson of capital
murder, and the trial judge assessed a mandatory life sentence. In two issues,
appellant contends the evidence is legally and factually insufficient to
support the conviction. We affirm. It is interesting to note that at trial,
"Dr. Christian Meissner, an assistant professor of psychology and criminal
justice, testified on appellant's behalf as an expert on false confessions.
According to Meissner, interrogation techniques that lead to gaining a true confession
from a guilty person may also lead to receiving a false confession from an
innocent person. Generally, the interrogation process contains three phases:
isolating the suspect in a room and building rapport phase, confrontation
phase, and minimizing the suspect's perception of the consequences phase. There
are several factors that may determine whether an individual gives a false
confession, including the suspect's age, the length of time the suspect is
interrogated, and whether interrogation takes place in the middle of the day as
opposed to the middle of the night. Meissner also testified his career has been
as an academic, he had no experience in conducting law enforcement
investigations, and he could not tell the jury whether appellant's confession
was true or false." Click here for the
complete opinion.

(Jury rejects testimony from Dr. James Waker of
false confessions and suggestibility)

In State v. Clark (2012) the
jury found the defendant guilty of multiple charges of rape of a child and
aggravated sexual battery, even though defense expert Dr. James Walker
testified "that he evaluated the Defendant for propensity to be unduly
suggestible or overly compliant in interrogation." He also evaluated the
Defendant for personality characteristics that might lead him to give a false
confession or false implicating statement. He further testified that the
defendant "was susceptible to leading questions in an interrogation
situation and that the person would be much more likely than the average person
to make false admissions."Click here for the
complete decision.

(Testimony from defense expert Dr. James Stark on false
confessions excluded)
In Humphrey v. Riley (2012)
the Supreme Court of Georgia upheld the trial court's decision to exclude the
testimony of defense expert Dr. Stark on police interrogation tactics and the
possibility that false confessions result from such tactics. The trial court
excluded the testimony, reasoning that "false confession theory ha[d] not
reached a verifiable stage of scientific certainty" and noting that
"the knowledge that a false confession c[ould] be obtained from a suspect
by police [wa]s not beyond the ken of the average juror."

The Supreme Court stated that "We find no prejudice from trial counsel's
alleged deficiency for two reasons. First, as we noted on direct appeal, the
question of whether someone might be persuaded to give a false confession
through persuasive interrogation techniques is "not beyond the ken of the
average juror," and, therefore, the absence of expert testimony on that
question would not be prejudicial... Indeed, a review of the trial record
reveals that trial counsel clearly set the issue of interrogation techniques
before the jury through the cross-examination of the investigator who obtained
Riley's inculpatory statement and who readily admitted using such techniques
with Riley... Second, we have held that testimony from the very expert relied
upon by Riley in his habeas hearing was properly excluded in another case,
demonstrating that similar testimony would have been properly excluded at
Riley's trial."Click here for the
complete decision.

In Rogers v. State(2012)
the Court of Criminal Appeals of Tennessee at Nashville, affirmed the denial of
post-conviction relief after the defendant had been convicted of first degree
murder, and subsequently filed an appeal. During the trial, Dr. Pamela Auble,
admitted as an expert in neuropsychology and clinical and general psychology,
testified that, at post-conviction counsel's request, she evaluated statements
the Petitioner gave to law enforcement in order to determine whether his
statement had been coerced. As part of her testimony she stated that "The
purpose of police interrogation is to elicit statements from defendants that
describe their role in the alleged offense. The Reid technique is the most
commonly employed strategy to accomplish this goal.... The Reid technique can
be reduced to three processes: 1. Isolation in an interrogation room; 2.
Confrontation or maximization in which the suspect is accused of the crime,
presented with evidence, and blocked from denial; 3. Minimization in which the
crime is morally justified and sympathy is feigned." The jury rejected the
suggestion that the defendant's incriminating statements were unreliable or
coerced in any way.

[It should be noted that Dr. Auble erroneously repeated several
mischaracterizations of the Reid Technique that are often espoused by Dr.
Richard Leo and others - see
this document

In US v. Jacques (2011) the US District Court of
Massachusetts rejected the proffered testimony of defense expert Professor Alan
Hirsch on the issue of false confessions, stating, in part, that:

"This court excluded Professor Hirsch's testimony on two principal
grounds: (1) he lacked specialized knowledge that would assist the jury in
understanding or weighing the evidence; and (2) his testimony was not based on
sufficient facts or data and did not involve the application of reliable
principles or methods to the facts of this case."

In his testimony Professor Hirsch indicated that the Reid Technique generated
false confessions, but could provide no evidence to support this position as
the court pointed out:

"Professor Hirsch's criticism of the Reid technique appeared, at one point
in his testimony, to be that it increased the overall number of confessions,
both true and false.... ("I want to be very clear that, number one, the Reid
Technique is too effective. The problem is not that it's ineffective. It breaks
down guilty suspects. The problem is that it also breaks down innocent
suspects.").) Again, he failed to point to any data supporting even this
position, which does not address the central issue here: the relative frequency
of false confessions and the factors contributing to it.

In sum, the proffered expert testimony to the effect that the Reid technique
enhanced the risk of an unreliable confession lacked any objective basis for
support whatever. Although Professor Hirsch insisted that "there is a
wealth of information about the risks of the Reid technique," he could
point to none.... It is true, as able defense counsel pointed out, that all
science is not the same, and in the area of false confessions the kind of
strictly mathematical support available in other areas may be lacking. But some
objective basis other than say-so must be offered, and none was."Click here for the complete decision.

(Court limits the testimony of expert witness Dr.
Samuel Roll on the issue of false confessions)

In US v. Ganadonegro (2011)
the US District Court, D. New Mexico, limited the testimony of expert witness
Samuel Roll on the credibility of the defendant's statements.

During a suppression hearing at the trial, Dr. Roll testified as follows:
"Based on his examination of Ganadonegro and the tests he administered to
Ganadonegro, Dr. Roll concluded that Ganadonegro has low verbal skills,
because, although his overall intelligence is in the forty-second percentile,
his verbal I.Q. is at the eighteenth percentile and his verbal comprehension is
in the twelfth percentile... Dr. Roll also concluded that Ganadonegro has a low
estimate of his personal worth and experiences low self-esteem and limited
self-confidence...Dr. Roll concluded that Ganadonegro has a deficient in
attention and concentration, and that his capacity to coordinate and organize
data, and weigh it for contradictions and consequences, falls below most
people's skill level...Dr. Roll concluded that Ganadonegro demonstrated
impairment of reality-testing capacities in which he tends to misperceive
events, and tends to form mistaken impressions of people and what their actions
signify...Dr. Roll also concluded that Ganadonegro is susceptible to episodes
of depression...Based on these conclusions, Dr. Roll concluded: "There are
a host of language factors, cultural factors, and personality factors that
would have increased the probability of ... Ganadonegro making false
admissions. (emphasis added) Only an interview with the situational factors
ameliorated and his personality dispositions taken into account could produce
any reliable pattern of admissions on his part."

Upon their review of the case, the District Court ruled that "The Court
will thus exclude Dr. Roll's testimony insofar as it relates to the credibility
of Ganadonegro's statements in the interview..... the Tenth Circuit's opinion
strongly suggests that Dr. Roll's testimony that there are a host of language
factors, cultural factors, and personality factors that would have increased
the probability of Ganadonegro making false admissions does little more than
vouch for the credibility of Ganadonegro's statement, and thus encroaches on
the jury's exclusive function to make credibility determinations.Click
here for the complete decision.

In State
v. Sam (2009) the Court of Appeals Washington, upheld the trial court's
decision not to allow E. Clay Jorgensen, Ph.D., an expert witness hired by the
defense to evaluate the voluntariness of Mr. Sam's statements, to testify. The
court found that "Mr. Jorgensen did not make a diagnosis, and
"testimony about traits is ... disguised character evidence." The
court stated, "I have a real problem with whether this is also
inappropriate character evidence, disguised character evidence, rather than
being something serious that the jury could consider from an expert." Id.
The court further reasoned, "I do believe that an argument can be made,
without an expert, that the jury would understand." Click
here for the complete decision.

Jarvis Wright

(Court refuses to let Dr. Jarvis Wright testify on
false confessions)

In Munoz v. State (2009) the
Texas Court of Appeals, El Paso upheld the trial court's decision to reject the
testimony of Dr. Jarvis Wright. In their decision they pointed out that
"In Point of Error Four, Appellant argues that the trial judge erred in
refusing to allow Dr. Jarvis Wright's testimony relating to the field of false
confessions. The testimony was intended to rebut the confession and Appellant's
admission that he hit Xavier's head on a bedpost.

At the hearing conducted outside the presence of the jury, Dr. Wright testified
that the field of false confessions was a relatively new area and an emerging
field with which Dr. Wright was familiar by having read recent literature. Dr.
Wright explained that psychologists in the field have identified several
factors which indicate an increased likelihood that a given confession is
false. These factors included the interrogation techniques used, low
intelligence, lack of familiarity with law enforcement, and susceptibility to
suggestion. Appellant did not intend to ask Dr. Wright to give an opinion as to
the truth or falsity of Appellant's confession, but only to testify to a theory
that false confessions occur and that the existence of certain factors make it
more likely that a specific confession is false. Dr. Wright never interviewed,
observed, or tested Appellant, nor had he ever written on, or conducted any
testing in the field of false confessions. Dr. Wright's qualification to
testify as an expert was that he had read literature on the topic and the basis
of his testimony was that he had reviewed Appellant's confession and school
records.

Based on our evaluation of the testimony and application of the Kelly factors
for reliability of scientific theory, we find that the Appellant did not meet
his burden of providing by clear and convincing evidence that Dr. Wright's
testimony was reliable and therefore relevant. Dr. Wright's testimony could not
have assisted the jury in understanding the evidence or in making a
determination of a fact issue. Dr. Wright did not intend to offer an opinion as
to the truth or falsity of the Appellant's confession. During cross-examination
Appellant admitted the truth of the portions of his confession that he earlier
claimed were inaccurate. The trial court's decision to exclude Dr. Wright's testimony
regarding false confessions is within the zone of reasonable disagreement. The
trial court did not abuse its discretion in excluding it. Point of Error Four
is overruled." Click
here for the complete decision.

(Court rejects the testimony of expert witness Dr.
Christopher Lamps on the issue of confession voluntariness)

In T.C., a minor v. State (2011)
the Court of Appeals of Arkansas upheld the trial court's decision to reject
the testimony of expert witness Dr. Christopher Lamps. The defendant argued
that "the trial court ignored crucial testimony from Dr. Christopher
Lamps, who concluded that appellant did not freely, voluntarily, or
intelligently waive his rights. The trial court found that Dr. Lamps's
testimony was given in generalities that young children would not be able to
understand the implications of waiving the right to an attorney. However,
appellant argues that the doctor specifically testified that appellant was not
able to make a knowing or intelligent decision in this case.

"...the trial court was free to reject Dr. Lamps's opinion on this or any
issue. See Haynes, supra. The trial court listened to the testimony and viewed
the same taped statements upon which Dr. Lamps based his opinions and concluded
that the confession was not the result of any threats or inducements, but was
given of appellant's own free will with knowledge of the circumstances.
Further, coercion cannot be presumed because what was said to appellant between
6:45 p.m. and 10:20 p.m. was not recorded. There was no evidence that appellant
was made any promises or subjected to any threats or coercion during this
time.... Appellant asks this court to assume that a promise was made. However,
this assumption flies in the face of the evidence, which included specific and
unequivocal denials by all officers that appellant was promised anything.
Accordingly, we affirm."Click
here for the complete decision.

In Ruiz
v. State (2010) the Court of Appeals of Indiana upheld the trial
court's decision to exclude the testimony of Dr. Jeffery Vanderwater-Piercy.
From the court's opinion:

"Ruiz's counsel wanted to present expert testimony by Dr. Jeffrey
Vanderwater-Piercy concerning false or coerced confessions. The Doctor is a
licensed clinical psychologist who had practiced for twenty years and had
testified as an expert fifty times. However, he had never been qualified in any
court as an expert on coerced confessions specifically.

At the time of the hearing on the admissibility of the testimony, the Doctor
had not yet conducted any testing of Ruiz, but if his testimony were to be
admissible, the Doctor would examine Ruiz to determine if he had any
personality traits that would make him susceptible to police influence and
whether the police interrogation was psychologically coercive. The Doctor had
examined five other defendants for the possibility of false confession but had
not found any evidence those confessions were coerced.

The court declined to allow the Doctor's testimony because although the Doctor
"possesses extensive psychological knowledge and experience," (App.
at 149), his testimony "would not assist the triers [sic] of fact in this
case to understand scientific, technical or specialized evidence or to
determine a fact in issue," ( id. at 149-150), and it would "be
likely to cause unfair prejudice, to confuse the issues or to mislead the
jury." Affirmed. Click here for the
complete decision.

In State v. Black (2010)
the Supreme Court of Appeals of West Virginia upheld the lower court's decision
to reject the testimony of psychiatrist Bobby Miller, M.D. on the basis that
"this testimony does not come up to any standards of reliability as far as scientific
testing go[es],..." Click here for the complete decision.

(Court does not allow
Dr. Karen Fukutaki to testify as an expert witness on confession voluntariness)

In Gruwell v. State (2011) the Supreme Court of Wyoming
upheld the lower court's decision to exclude the testimony of Dr. Karen
Fukutaki as to the "voluntariness of the confession and the psychology relating
to confessions" due to the defendant not properly notifying the prosecution of
their intent to call this witness in a timely manner. Click
here for the complete decision.

(Court rejects the
testimony of expert witness Dr. John DiBacco on the issue of coercive
interrogation techniques)

In
US
v. Preston (2011) the U.S. District Court, D. Arizona, upheld the
admissibility of the defendant's confession and rejected the testimony of
expert witness Dr. John DiBacco, stating the following: "During the course of
the interview, the agents asked Defendant suggestive questions such as whether
it was a one-time event, whether the victim pulled down his own pants, whether
Defendant unzipped his own pants or pulled them down, whether Defendant put on
a condom, whether and for how long he penetrated the victim, whether he threw
the condom away, etc. In response to these questions, Defendant made some
admissions. At the end of the interview the officers wrote out a document which
they represented to Defendant could contain his apology to the victim. In the
document, the officers summarized the confessions that they had obtained from
Defendant, included an apology to the alleged victim, and had Defendant review
and sign the document, which he did.

At hearing, Defendant called Dr. John
DiBacco as an expert witness. Dr. DiBacco offered evidence that the interview
technique used by the agents was inappropriate and persistent; and that
Defendant may be susceptible to the inappropriate questions and promises made
by agents because he is substantially below average in his communication and
comprehension skills. Dr. DiBacco further testified that Defendant has been in
special education courses as a result of these poor verbal communications
skills. Under such circumstances Defendant's expert opined, Defendant might
have been willing to say what he perceived his questioners wanted him to say to
bring the interview to an end."

The
District Court found that "Having assessed the nature of the interrogation at
issue, and the extent of Defendant to resist the pressure brought upon him by
the agents, the Court is of the opinion that the government has met its burden
that the statements were not the result of Defendant's will being overborne."
Click here for the
complete decision.

(Court rejects the
argument made by expert psychologist Dr. Mark Vigen that the defendant was
susceptible to police manipulation)

In
State
v. Blank (2011) the Court of Appeal of Louisiana, Fifth Circuit, upheld
the trial court's decision to admit the defendant's statements even thoughhe had
offered the testimony of Dr. Mark Vigen, an expert psychologist, "who described
him as an illiterate and easily manipulated individual who was confronted by
multiple law enforcement officers and then taken to a strange office for
interrogation where, over the course of many hours, he finally broke down.
Blank asserts that, under the circumstances of this case, the emotional stress
upon him was sufficient to vitiate his consent, contrary to the trial judge's
belief." Click here for the
complete decision.

In State v. Craven (2010) the
Court of Appeals of Nebraska upheld the lower court's decision to reject the
testimony of Dr. Scott Bresler on false confession issues. As the Court of
Appeals stated in their opinion, "Upon our review of the testimony of
Bresler, which Craven wished to present to the jury, it is clear that the
theory regarding false confessions was still being tested and subjected to peer
review and publication, had no known rate of error, and had no specific
standards to control its operation. Furthermore, the ultimate conclusion to be
given to the jury by Bresler was not that of an "expert opinion" but
merely a tool to assist the jury in its determination of the facts...... The
jury had an opportunity to view the interview twice during the trial and to
draw its own conclusions regarding the interview. Therefore, we find that the
district court did not abuse its discretion by excluding the testimony of
Bresler." Click here for the
complete decision.

(Court excludes the testimony of psychiatrist Dr.
Robert Latimer)
In State v. Rosales (July
2010) the Supreme Court of New Jersey upheld the lower court's decision to
exclude the testimony of Dr. Robert Latimer. In this case the defense retained
the services of "psychiatrist Dr. Robert Latimer, who met with defendant
on three occasions at the prison. Dr. Latimer also reviewed most of the
discovery materials generated from the investigation. In his September 22, 2005
letter-report, Dr. Latimer opined that defendant "ha[d] been vulnerable to
severe anxiety and panic due to the power of the interrogation setting."
He concluded that defendant's "will was overcome to the point where he
confessed to a crime he did not commit."

The defendant submitted a March 23, 2006, supplemental letter-report prepared
by Dr. Latimer in which the doctor referenced the works of several authorities
on false confessions. Dr. Latimer noted that his testimony would "entail a
psychological interpretation of defendant's fear-stricken, panicky reaction to
direct death threats," and that the issues were beyond the knowledge of
the average person. He explained that "during a stressful interrogation,
the stress of denial becomes stronger than the stress of admitting[, and a]t
that point, the suspect can easily break and issue a false confession."
The State opposed the motion, arguing that Dr. Latimer's opinions were based on
generalizations and were not tied to a recognized clinical diagnosis of
defendant.

"Based on the record before it, the trial court concluded that Dr. Latimer
failed to proffer "scientifically reliable evidence that would truly
assist the trier of fact."Click
here for the complete decision.

In State v. Langley (2011) the Court of Appeal of
Louisiana, Third Circuit, the court upheld the trial court's decision to reject
the testimony of Dr. Sol Fulero on the basis that "the judge indicated that he
did not think the testimony would assist him in reaching a decision regarding
whether the defendant gave a false confession."Click here for the
complete decision.

(Another Court excludes
the testimony of Dr. Solomon Fulero)

In United States of America ex rel. Tenisha Carter v. Transcoso
(2011) the US District Court, N.D Illinois, upheld the lower court's exclusion
of the testimony or Dr. Solomon Fulero. In their opinion the District
Court stated that, "Dr. Fulero's testimony was offered to show that Carter's
environment was coercive and likely to lead to a false confession given her
mental state as a juvenile. While these issues are related, it is by no means
clear that Dr. Fulero's testimony would have been directly on point, as Carter
claims. In fact, it is telling that Carter does not rely whatsoever on evidence
Fulero would have introduced in arguing that the state court improperly decided
that there was no seizure until Carter confessed. Thus, the Court cannot find
that the state court's evidentiary ruling regarding Dr. Fulero's arguably
unrelated testimony, which Carter had the opportunity to contest in state
court, deprived Carter of a full and fair opportunity to be heard."Click here for the complete decision.

In Terry v. Commonwealth(2010) the Kentucky Supreme
court ruled that the "Trial court's improper exclusion of expert testimony
on behalf of defendant regarding general scientific principles and studies
surrounding police interrogations, on grounds that defendant failed to disclose
witness prior to trial, was not harmless error in murder prosecution; defendant
testified to coercive nature of interrogation, essential question presented at
trial was whether defendant's confession was reliable, and denial of expert
denied defendant a context and foundation supporting his only defense of calling
confession into doubt."Click
here for the complete decision.

"Prior to trial, appellant moved to permit the testimony of Dr. Fulero,
and the trial court held a hearing pursuant to Evid. R. 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469. Following this hearing, the trial court permitted Dr. Fulero to
testify as an expert at trial, consistent with the U.S. Supreme Court's
decision in Crane v. Kentucky (1986), 476 U.S. 683, 106 S.Ct. 2142, 90
L.Ed.2d 636, regarding his knowledge of psychological law enforcement
interrogation techniques and the impact they may have on inducing false
confessions. However, the trial court specifically excluded testimony, " *
* * regarding the number of wrongful convictions or circumstances relating to
other cases of claimed wrongful prosecutions and/or convictions based on false
confessions, past or present * * *."Click here for the complete decision.

In People v. Purcell (2011) the California Court of Appeal,
Second District, upheld the lowercourt decision to
exclude the testimony of Dr. Mark Costanzo on the issue of false
confessions, indicating that, "At trial, appellant recanted his confession. He
returned to his original description of the murder as Baltazar shooting Willis
in anger at Willis's complaints about the cost of appellant's proposed
carpentry work. He testified he falsely confessed to shooting Willis in order
to ensure his family's safety. In support of his recantation, appellant offered
the testimony of Dr. Mark Costanzo, an expert in police interrogation techniques
and false confessions. Dr. Costanzo was prepared to opine for the jury that
sheriff's investigators had used two techniques likely to induce a false
confession: telling appellant he had failed a "fake" lie detector test, and
promising him leniency if he told investigators the truth. The trial court
excluded Dr. Costanzo's testimony in both trials."Click here for the complete decision.

In People v. Martinez (2008) this
case the Court of Appeal upheld the trial court's decision to exclude the
testimony of Mark Costanzo on
why people make false confessions. "'Expert opinion is not admissible if
it consists of inferences and conclusions which can be drawn as easily and
intelligently by the trier of fact as by the witness.'... A trial court may
exclude the testimony of a false confessions expert where the defendant's
testimony about why he falsely confessed is easily understood by jurors." Click
here for the complete opinion.

In Vance v. State (June 2011) the Supreme Court of Arkansas
upheld the Circuit Court's decision to reject the testimony of Dr. Daniel H.
Grant, a neuropsychologist and expert in forensic psychology, and Dr. Stephen
Greenspan, an expert in psychology and developmental disabilities. Dr. Grant's
testimony was that "he had conducted numerous tests on Appellant over the
course of two days and determined that Appellant had a full scale IQ of 75,
which placed him in the fifth percentile. He opined that Appellant had
cognitive impairments or deficits involving language and memory. Dr. Greenspan,
who had recently authored a book on the effect of cognitive impairment on a
person's tendency to engage in foolish or gullible behavior, testified that
people with limited intelligence are much more likely to give false
confessions. In addition, Dr. Greenspan explained that persons with cognitive
impairments have a "need to look more normal than they really are to cover up
their limitations," so they confabulate or "fak[e] knowledge that they don't
have," and when the veracity of their account of an event is challenged, they
change what they are saying "to create the appearance of competence ... or to
get the people who are questioning them to leave them alone." Dr. Greenspan
acknowledged that he had not interviewed Appellant but had reviewed the
transcripts and tapes of Appellant's statements to police; he opined that he
"saw lots of evidence of what I would consider confabulation as reflected in
the fact that [Appellant] gave many different versions often changing the same
version on a dime basically." The circuit court stated that, after hearing the
foregoing proffered testimony, it was even more convinced that to allow such
testimony would be to invade the province of the jury."

The
Supreme Court of Arkansas ruled that "We see no abuse of discretion in such a
ruling. Appellant had ample opportunity to cross-examine the officers who took
his statements. In addition, the jury viewed a videotape of one of Appellant's
statements and heard an audio recording of two others. The proffered testimony
was not beyond the ability of the jury to understand and draw its own
conclusions. Since Dr. Greenspan opined that Appellant was confabulating, the
proffered testimony would have invaded the jury's function as trier of fact." Click here for the complete decision.

In State v. Wright (2008) the Court of Appeals upheld
the trial court's decision to exclude the testimony of forensic psychologist Dr. Rosalyn Shultz who sought to
testify about factors which lead people to make false confessions "and the
would have opined that Appellant possessed certain of those characteristics
which tend to be present in people who make false confessions." The
Appeals court stated that such testimony would "Invade the province of the
jury." Click here for the complete opinion.

In Downs v. Virginia (2006)
the defendant appealed saying that "the trial court erred in refusing to
allow Dr. Susan Garvey to
testify regarding Downs' "suggestibility and a psychological
diagnosis." Earlier in the trial the defense had called Dr. Solomon
Fulero, a nationally recognized expert in the area of false confessions, as an
expert witness. Dr. Fulero testified about factors and circumstances that can
lead to a false confession and described the personality characteristics of a
person likely to confess to a crime they did not commit. The court only allowed
Dr. Fulero to testify generally about false confessions and did not allow Dr.
Fulero to testify about Downs specifically because he had never examined
her." The following day the defense sought to have Dr. Garvey testify as a
second expert. Dr. Garvey is a psychologist who had examined Downs prior to
trial in order to determine whether she was competent to stand trial. Although
Dr. Garvey had never previously qualified as an expert on false confessions,
her report concluded that Downs had "personality characteristics ... consistent
with the type of individual who would be prone to making a false
confession." Based on her prior examination of Downs, Dr. Garvey intended
to testify about two of the "false confession factors" identified by
Dr. Fulero, specifically, "suggestibility and a psychological
diagnosis." The trial court held that the jury did not need
"expertise" to assist them in assessing whether Downs had the type of
personality that Dr. Fulero described as being susceptible to giving a false
confession. The Court of Appeals agreed. Click
here for the complete opinion.

In People v. Oliver (July 2014) the
Supreme Court, Kings County, New York rejected the testimony of false
confession expert Alison Redlich.In their opinion the court stated the following:

"Dr. Alison Redlich, one of a small group of social
scientists who have repeatedly proffered themselves as experts on the subject
of false confessions, describes herself as an expert in "the areas of social
influence, decision making, scientific methods, and specifically interrogation
techniques and confession." She asserts that her testimony "will give jurors a
more accurate understanding how to weight [sic] the confession itself and how
to avoid using inaccurate cues and assumptions to judge the truthfulness of the
confession and/or the defendant's testimony about his confession," yet her
proffer makes no reference to the defendant at all, nor to the particular
circumstances of this case. Instead, she has provided what appears to be a
general treatise on the subject of false confessions. For that reason alone,
her proposed testimony does not meet the threshold standard required by the
Court of Appeals-that the proposed testimony be relevant to the particular
facts of the case before the court.

Moreover, while Dr. Redlich has impressive academic
credentials, there are serious reasons to question the extent of her expertise,
the legitimacy of the theories she propounds, and her objectivity. The Bedessie
court's recognition that a qualified professional may, in the appropriate case,
provide testimony about the factors that could induce a person to testify
falsely does not mean that every researcher who claims an expertise in this
area should be permitted to testify.... In other words, the mere assertion by the
proposed expert that she is in fact an expert is not a basis to admit her
testimony.

Similarly, the Court is not required to accept Dr. Redlich's
assertion that her theories are "generally accepted among scientists,"
especially since many of the researchers she includes in that group are the
very researchers whose testimony has been consistently rejected by New York
courts. ( See cases cited infra.). As some of those cases make
plain, the "relevant scientific community" is not at all unanimous about false
confession research, the methods employed by Dr. Redlich and her colleagues,
and the conclusions they reach. Dr. Michael Welner, a board certified
psychiatrist, is of the opinion that false confessions are "rare events," and
that the only way to determine whether a confession is actually false is
through DNA testing that disproves the guilt of the confessing defendant. People
v. Teon Williams, supra. According to Dr. Welner, it is only through
"rigorous psychological and psychiatric examinations" that a professional can
determine whether a person is susceptible to confessing to a crime he did not
commit. He dismisses the theories Dr. Redlich and her colleagues advocate as
"soft science," pointing out that some of the research actually relied on
newspaper reports of cases as sources of allegedly false confessions. People
v. Lowery, supra. See also U.S. v. Wilson, NMCCA 200300734 (U.S.
Navy–Marine Corps Court of Criminal Appeals 2007) (expert opined that Dr.
Olfshe's theories were "not sufficiently tested," have an "unacceptably high
rate of error," "depart from accepted standards," and are not "accepted in the
relevant scientific community.").

There is even dissension among the researchers that Dr.
Redlich cites. One of them, Dr. Saul Kassin, has conceded that there is no
"scientific basis for distinguishing true from false confessions," that "further
research in the field is sorely needed," and that lay people may be able to
assess whether confessions are in fact false.... Dr. Redlich herself has admitted
that her theories cannot be tested empirically.

An
examination of Dr. Redlich's submission in this case underscores the wisdom of
the decisions rejecting this particular brand of false confession testimony.
Like the testimony proffered in Bedessie, Dr. Redlich's report is filled
with speculation, unsupported theories, and advocacy rather than expertise.
There is no empirical support for many of her assertions. For example, she
maintains that there is "an alarmingly high incidence of wrongful convictions,"
and that "[a]pproximately 25%" of this unidentified number "involve false
admissions." But her premise is itself unscientific. She does not quantify the
supposedly "alarmingly high incidence" of wrongful convictions, does not detail
how a conviction is determined to be "wrongful," and does not explain the
method or formula by which a confession is determined to be false.

There is similarly no support for Dr. Redlich's hypothesis
that jurors are incapable of entertaining the possibility that a confession
could be false. The jury system is premised on the ability of citizens to
determine whether particular evidence is true or false. Perhaps the best
refutation of Dr. Redlich's mistrust of a jury's competence in this regard is a
case in which she had first-hand involvement, Edmonds v. Mississippi, supra.
The defendant in that case, a juvenile, confessed to helping his stepsister
kill her husband. The trial court precluded Dr. Redlich's testimony as
insufficiently reliable, a decision that the appellate court upheld, while
reversing Edmonds' conviction on other grounds and remanding for a new trial.
The jury at the second trial heard the evidence of the defendant's confession
and acquitted him, obviously fully capable of weighing the evidence without any
assistance from Dr. Redlich.

Another pillar of Dr. Redlich's thesis is the role that
police interrogation methods play in false confessions. This part of her theory
also suffers from multiple flaws. A review of her curriculum vitae reveals that
Dr. Redlich has never worked in any law enforcement capacity, nor does she
articulate the basis of her theoretical expertise. She is nonetheless critical
of law enforcement in general, and police interrogations in particular, which
she describes as "confidence games" with "strategies based on the manipulation
and betrayal of trust." Given these views, it is difficult to envision an
interrogation of which she would approve. In any case, while she is a critic of
the police, the Court does not accept her statement that she is an expert in
police methods, at least insofar as this case is concerned.

Dr.
Redlich does not appear to know anything about police practices in New York
City, as demonstrated by her descriptions of particular interrogation methods.
She assumes that all police departments use the same interrogation methods,
including the "Reid Technique," which Dr. Redlich labels the "bible of police
interrogation," as well as a Behavioral Analysis Interview, the importance of
which, Dr. Redlich opines, "cannot be understated [sic]." Dr. Redlich also
maintains, again without explanation, that "police have developed methods to
get suspects to talk outside of Miranda.' " Another hallmark of all police
questioning, according to the doctor, is a three phase process: 1)" custody and
isolation" in which the suspect is "detained in a small room" to "experience
the anxiety, insecurity, and uncertainty" of police questioning; 2)
"confrontation," in which the suspect is "presumed guilty," "told (sometimes
falsely) about the evidence" against him, and is "prevented from denying his/her
involvement in the crime," and; 3) "minimization," where a "now sympathetic
interrogator attempts to gain the suspect's trust," offers "face-saving
excuses," and "implies" that the suspect will get a shorter sentence if he
confesses, and a longer one if he does not.

Conspicuously absent from Dr. Redlich's submission is any
scientific connection between these techniques and false confessions; there are
no statistics about the number of false confessions caused by the utilization
of the techniques. See People v. Lowery, supra. More important, there is
simply no evidence that the New York City Police Department uses the "Reid
technique," let alone any evidence that the investigating detective in this
case did. In fact, Detective Angst's testimony on cross examination
demonstrates exactly the opposite:

"Q: And when you first became a
detective you went through extensive training in interrogation techniques and
other aspects of detective work, right?

A: No.

Q: When did you first undergo interrogation training?

A: When I got to the detective squad.

Q. What did that training consist of?

A: Just mostly paperwork and interviews.

Q: Were you trained in methods of trying to get suspects to
make admissions and confessions?

A: No

Q: You never got training in that?

A: In a method, no.

Q: Now, detective, have you ever been trained in isolation
techniques for a suspect?

A: No."

The detective also denied that he said anything to the
defendant about the consequences of a conviction for killing or injuring the
child, or anything about a possible sentence. The fact that the detective did
not employ the techniques that are central to Dr. Redlich's theories is yet
another reason to preclude her testimony.

Nor does this case have any of "commonalities" that Dr.
Redlich says exist in so-called "proven" false confession cases. According to
her, false confession cases typically involve juveniles or people with mental impairments, and are characterized
by very long interrogations where the suspect is isolated and deprived of
sleep. The police employ deceit and trickery, and there is often little or no
corroborating evidence. Even accepting all of Dr. Redlich's analysis at face
value—a dubious proposition, since this section is also long on anecdotes
and generalizations and short on science—none of her theories has anything
to do with the facts of this case. See Rathbun v. Scribner, 2010 U.S.
Dist. LEXIS 31520 (C.D.Cal.2010).

The
defendant is not a juvenile, and has no mental or intellectual deficits. He was
never isolated or in police custody; on the contrary, he appeared at the
precinct of his own accord, with his family, in the middle of the day. The only
person who was deprived of sleep appears to be the investigating detective, who
did not know the defendant was coming in, and was just leaving the precinct
after having worked for two straight days. The interrogation itself was
slightly less than three hours, well below what Dr. Redlich deems excessive.
Moreover, there is evidence that corroborates the details of the defendant's
confession. Other witnesses are apparently prepared to say that the defendant
was alone with the baby at the time the fatal injuries were inflicted. Most
significant, the defendant's recorded telephone conversation with his relative
confirms what he said to the police.

Thus, even assuming for argument's sake that Dr. Redlich's
proposed testimony had the requisite acceptance in the relevant scientific
community, it has no relevance at all to this case. It would not aid the jury
at all, and meets none of the criteria outlined in Bedessie. The Court
therefore denies the defense application to introduce her testimony.

(Testimony of Dr. Allison Redlich on
false confessions excluded by the court -testimony's probative value was outweighed by its potential to confuse
or distract the jury)

In Commonwealth v. Hoose (2014) the
Supreme Judicial Court of Massachusetts upheld the lower court's decision to
exclude the testimony of Dr. Allison Redlich on the issue of false confessions,
stating that "it was not an abuse of discretion to exclude the expert testimony
where the judge could have concluded also that the testimony's probative value
was outweighed by its potential to confuse or distract the jury." From their opinion the Supreme Court
stated the following:

"...the defense proffered that Dr. Redlich's testimony would
be limited to the fact that false confessions do occur, that they are an area
of scientific study, and that there are certain factors related to
interrogation methods and the internal disposition of individual suspects that
have been identified as commonly occurring among false confessions. The
defendant argued that such testimony would be helpful to the jury in assessing
the reliability of the defendant's statements to police.

... After hearing argument on the Commonwealth's motion, the
judge decided to take testimony from the expert witness in voir dire to
determine whether such testimony should be admitted for the jury's
consideration... The judge limited the subject of the voir dire to the witness's
proffered opinion regarding the
concept of false confessions as an area of scientific research, the factors
that may contribute to such confessions, and any connection this information
would have to the defendant's case and the jury's assessment of the evidence.

Dr. Redlich explained that as a result of this research, a
taxonomy of false confession "types" has been identified... and
certain factors have been linked to proven false confessions.... Based on her
review of the defendant's recorded statements, Dr. Redlich also opined on those
false confession factors that
were present in the defendant's case...
Additionally, Dr. Redlich acknowledged that
no studies have been conducted comparing the prevalence of these factors among
false confessions to either "true" confessions or all confessions. Furthermore,
Dr. Redlich testified that the studies based on proven false confessions that
have been used to identify these relevant factors were based on a sample size
of approximately 150 to 200 proven false confessions.

At the conclusion of the Lanigan hearing, the judge ruled that
the expert testimony could not be admitted in evidence because the principles
and methods on which Dr. Redlich's opinions were based had not been shown to be
sufficiently reliable to go before the jury. The judge emphasized that the
research studies that identified the factors linked to false confessions were
based on a limited sample size of proven false confessions and that no research
or information would come before the jury regarding how frequently such factors
also may be present in true confessions.

Thus, in light of the limited number of false confession
factors present in this case, combined with the lack of evidence before the
jury calling into question the veracity of the defendant's statements, the
judge may have concluded that the proffered expert testimony was not relevant
and would have distracted or confused the jury by giving rise to speculation
based on facts and assumptions not in evidence.... Therefore, it was not an abuse
of discretion to exclude the expert testimony where the judge could have
concluded also that the testimony's probative value was outweighed by its
potential to confuse or distract the jury.

We
do acknowledge, however, that the phenomenon of false confessions is a growing
area of psychological and social science research, and we are mindful that
false confessions have been demonstrated to occur even in the context of
serious crimes, including murder.... Therefore, we do not foreclose the
possibility that under appropriate circumstances this sort of expert testimony
could be relevant to a defendant's case and helpful to a jury..... Although the precise number of false
confessions or prevalence data regarding false confession factors may never be
identified, as research regarding factors present in proven false confessions
continues to progress, information regarding these factors may be helpful in
certain circumstances. For example, should a case arise in which a defendant
attacks directly the veracity of his or her statements to police and where several
of the false confession factors thus far identified are present, it may be
appropriate for expert testimony of the sort proffered here to be taken into consideration.... Therefore, we leave further development
of this issue for another day."

In the case of Edmonds v. State (2006) the Court of Appeals of Mississippi
upheld the trial court's decision to reject the testimony of Dr. Allison
Redlich. From their opinion the court stated:

"After a day-long, pre-trial Daubert hearing on whether Dr. Redlich would
be allowed to testify, the trial judge entered an order finding that Dr.
Redlich's proposed testimony did "not satisfy the dictates of Mississippi
Rule of Evidence 702 and will be excluded." In its order, the court
pointed out that "Dr. Redlich admitted that there is no empirical test
available to determine whether a confession is truthful or not. Redlich also
admitted that the hypothesis of false confessions cannot be tested empirically.
Dr. Redlich testified that it would be impossible to do an empirical test of
false confessions because to do so would require taking juveniles to police
stations and accusing them of crimes they had not committed. The court found
that, overall, "Redlich indicated that there was very little study of false
confessions and juveniles."

In Flowers v State (2007)
the Supreme Court of Arkansas upheld the admissibility of the defendant's
confession, even though he claimed an IQ of 57-62, and upheld the trial court's
decision to refuse to allow the defense expert Dr. Tom Wright to testify that
the defendant's IQ range precluded him from making a competent waiver of his
Miranda rights.Click
here for the complete case.

In Floyd v. Cain (2011) the Supreme Court of Louisiana
ruled that "Considering all of the evidence, including Floyd's false confession
to the murder of Robinson, Floyd's low IQ and susceptibility to suggestion, the
missing police records, the lack of evidence linking Floyd to the murder of
Hines, the exculpatory value of the fingerprint evidence, defendant is entitled
to a new trial." As part of their decision making process the court
examined the information that the defense offered re the characteristics of the
defendant, including the following:

"The
defense suggests that Floyd has an IQ of 59 (well below the threshold for
mental retardation). Dr. Gregory DeClue, a forensic psychologist, who testified
at Floyd's post-conviction hearing, administered the WAIS IV IQ test to Floyd
at the Louisiana State Penitentiary in Angola in June 2009, and that test
indicated Floyd has a full scale IQ of 59. The generally accepted cut off for
mental retardation is 70. According to DeClue, 99% of all adults in the United
States score higher on the test than Floyd.

Additionally,
DeClue administered the Woodcock Johnson test to Floyd to assess his
language and reading comprehension skills. DeClue testified that, based on the
test results, Floyd can read at a second or third grade level. DeClue stressed
that these results indicate Floyd cannot communicate at the complex level an
average adult can.

DeClue
also administered the Gudjonsson Suggestibility Scale to determine Floyd's
levels of suggestibility and compliance. DeClue found that relator displayed a
high level of suggestibility, and that Floyd's "self-reported description was
that he's more compliant than the average person." DeClue testified that people
classified as mentally retarded are 10 times more likely to give a false confession,
that in many false confession cases, the confessor included details of the
crime scene presumed to be known only by the police and the perpetrator.

Although
mental retardation or illiteracy, alone, do not prevent a person from being
able to knowingly and intelligently waive his rights, this Court has held that
a mentally retarded 17–year–old with an IQ between 50 and 69 was
not able to understand his rights and was incapable of knowingly and
intelligently waiving his Miranda rights, and thus his confession should have
been suppressed. Click here for the complete decision.

(Court rules that Dr. Shawn Roberson would not be
allowed to testify on false confession issues at trial)

In White v. Patton (August
2014) the US District Court, N.D. Oklahoma, upheld the lower court's decision
to exclude the testimony of Dr. Shawn Roberson on false confession issues. The
trial court had ruled that Dr. Roberson's testimony about a possible false
confession did not meet the standards of acceptability. From their opinion the
District Court stated the following: "Petitioner presented the testimony
of Shawn Roberson, Ph.D., to explain the phenomenon of false confessions and
its applicability to the voluntariness of Petitioner's confession..... Dr.
Roberson identified three (3) areas of concern contributing to the possibility
of a false confession in this case: (1) Petitioner's youth, (2) Petitioner's
suggestibility, and (3) Petitioner's disenfranchisement from his family.... Dr.
Roberson also testified that Petitioner was not incompetent and while mental
illness is not a condition precedent for a false confession, Petitioner did not
have a major mental illness.... At the conclusion of Dr. Roberson's testimony,
the trial judge found that, while Dr. Roberson was an expert in the fields of
forensic psychology and false confessions, under OKLA. STAT. tit. 12, S 2702,
the information on false confessions had "not developed yet" to the
point of giving it credence.... The trial judge further stated that
"absent a showing of a demonstrable psychological condition or impairment
... the social science is simply not developed to a point where that decision
should be presented to a jury." For those reasons, the trial judge allowed
Dr. Roberson to testify during the Jackson v. Denno hearing, but ruled
that the testimony would not be allowed at trial."

(Court rejects testimony of forensic psychiatrist
that defendant fits the profile of someone who would be susceptible to giving a
false confession)

In Coleman v. State (October
2013) the Court of Appeals of Texas, Houston, upheld a lower court's decision
to exclude the testimony of a forensic psychiatrist's opinion that the
defendant fit the profile of a person susceptible to giving a false confession.
From the court's opinion:

"In his second issue, appellant asserts that the trial court violated his
constitutional right to present a meaningful defense when it erroneously ruled
that Dr. Michael Fuller could not testify as to his expert opinion that
appellant fits the profile of someone who would be susceptible to giving a
false confession... The erroneous exclusion of evidence offered under the rules
of evidence generally constitutes non-constitutional error.... But,
constitutional error occurs when the trial court erroneously excludes otherwise
relevant, reliable evidence which "forms such a vital portion of the case
that exclusion effectively precludes the defendant from presenting a
defense." ... Appellant argues that such constitutional error occurred
when the trial court ruled that Dr. Fuller would not be allowed to testify
before the jury about his expert opinion that appellant fits the profile of one
who would be susceptible to giving a false confession.

The State objected that appellant had failed to satisfy the Nenno test, and the
trial court ruled that Dr. Fuller could not testify as to his expert opinion
that appellant fits the profile of one who would be susceptible to giving a
false confession. Dr. Fuller testified at a hearing outside the presence of the
jury so that the trial court could determine the admissibility of his
testimony. Dr. Fuller stated that the area of false confessions was within the
scope of his field of practice and area of expertise as a forensic
psychiatrist. Dr. Fuller outlined three "sub sets [sic] of false
confessions that are accepted in the literature and by researchers." He
referred generally to 300 cases in the span of two decades in which the results
of DNA testing had exonerated individuals convicted of a crime. Dr. Fuller
stated that about fifteen to twenty-five percent of these individuals were
found to have falsely confessed. According to Dr. Fuller, "false
confessions frequently occur in individuals who are emotionally unstable, who
have mental illness, [sic] who have impaired cognitive abilities." Dr.
Fuller expressed his belief that there is a "legitimate clinical
concern" as to whether appellant falsely confessed to the charged offense.
According to Dr. Fuller, this concern is a result of appellant's testimony that
he falsely confessed and appellant's "psychological profile" which
Dr. Fuller described as "one that is very much like the psychological
profile of an individual who would be at relatively or higher risk than, say,
the average person for making a false confession." According to Dr.
Fuller, appellant's psychological profile is consistent with the profile of someone
who would falsely confess.

On cross-examination by the State, Dr. Fuller acknowledged that he had never
before testified in a court as an expert specifically in the area of false
confessions. Dr. Fuller testified he had read reviews of articles by a
"Dr. Leo" and reviews of articles by Mr. Saul Kassin. Dr. Fuller also
read a 2009 article by Dr. Leo on the topic of false confessions as well as
excerpts from the work of Mr. Kassin. Dr. Fuller indicated he found these
articles by searching the internet for "false confessions" after
evaluating appellant several months before trial. Dr. Fuller stated he had not
read The Psychology of Confessions by Saul Kassin. Dr. Fuller
acknowledged that he did not teach any courses in false confessions and had not
written any articles or books on the topic. Dr. Fuller stated that this case is
the first time he has "focused more directly and thoughtfully" on
false confessions as a primary issue. Dr. Fuller testified that he based his
conclusion that appellant had the profile of a person who would confess falsely
on his general mental-status examination of appellant, his clinical interview,
and his discussion with appellant of the circumstances at or near the time of
the alleged crime. According to Dr. Fuller, he based this conclusion on his
findings that appellant was suffering from a major depressive episode with
extreme hopelessness about his future, a sense of failure in general about the
quality and direction of appellant's life, obsession with military themes of
honor and chivalry, and preoccupation with "the notion of laying himself
down as part of a tribe or as part of a group..." Dr. Fuller described
appellant as a very needy, disturbed young man, who was depressed and hopeless
but not psychotic, and probably intermittently intoxicated. According to Dr.
Fuller, there is a possibility appellant made a voluntary, false confession to
achieve notoriety, attention, and a disturbed sense of fame.

Dr. Fuller did not administer any formal psychological testing of appellant.
The only examination he used with appellant was an examination for neurological
function, cognitive function, and memory function. Dr. Fuller has heard of the
"Johnson Suggestibility Scale," but he has not used that scale and is
unfamiliar with it. Dr. Fuller did not tie his opinion that appellant had the
profile of a person who would confess falsely to any specific study or article.
Nor did Dr. Fuller provide the trial court with a copy of any study or article.
Dr. Fuller had not read an article by Kassin cited by the State. Dr. Fuller did
not explain how his testimony properly relies upon or uses principles in this
field, nor did he cite any article or other source in support of this
proposition. There is no objective source material in this record to substantiate
Dr. Fuller's methodology as one that is appropriate in the practice of forensic
psychiatry.

We presume, without deciding, that the field of Dr. Fuller's expertise is a
legitimate one, and that the subject matter of Dr. Fuller's testimony is within
the scope of the field. Nonetheless, based upon the lack of evidence showing
that Dr. Fuller's testimony properly relies upon or utilizes the principles
involved in this field, we conclude that appellant did not satisfy his burden
of showing by clear and convincing evidence during the gatekeeping hearing the
reliability of Dr. Fuller's methodology for determining whether appellant fits
the profile of someone who would be susceptible to giving a false
confession..."

(Court did not allow David Mantell to testify as an
expert on false confessions)

In State v Collin (December
2014) the Appellate Court of Connecticut upheld the lower court's decision to
refuse to allow David Mantell to testify as an expert of false confessions.
From the Appellate Court's opinion:

"The defendant claims that the court abused its discretion by refusing to
permit the defendant's expert, David Mantell, a licensed clinical psychologist,
to testify on the topic of false confessions. The defendant argues that Mantell
was qualified as an expert on the topic of false confessions and that such testimony
was necessary to assist the jury in its assessment of the defendant's testimony
regarding his confession. The state argues, inter alia, that the defendant
failed to prove that Mantell had sufficient expertise on the topic of false
confessions, and, accordingly, that the court properly declined to permit him
to testify as an expert on the topic of false confessions. We agree with the
state."

The Appellate Court went on to state: "During Mantell's testimony at the
proffer hearing, which took place out of the presence of the jury, he stated
that he had testified on the topic of false confessions in approximately
fourteen cases. When questioned further, however, he explained that most of
those cases dealt with false denials, rather than false confessions, or
they were cases in which he consulted with counsel on the case, but did not
testify. The court then asked Mantell what type of studies he had reviewed.
Mantell explained that he had reviewed studies involving false confessions
where the defendant, through DNA, later had been exonerated. He testified that
"the researchers take a careful look at these cases and dissect the way in
which [the accused had been] interrogated and also ... look at the personality
characteristics of the people who made these false confessions." He also
stated that the commonality in the research findings was the tactics that were
employed by the police during interrogations and the witness' reactions to
those tactics. Mantell also stated that there was a second line of research
with which he was familiar and that such research involved doing a personality
evaluation of the defendants who later were exonerated. He explained that the
common personality traits of these individuals included suggestibility, mental
health problems, lower intelligence, and concentrated personal adversity that
makes them less resilient to external pressure. The court asked Mantell whether
he had evaluated the defendant in this case, and Mantell stated that he had not
evaluated the defendant. Upon questioning by the prosecutor, Mantell also
conceded that he was unfamiliar with any kind of psychological examination
involving the defendant, that he had never seen the result of a psychological
examination involving the defendant, and that he had no idea what such an
examination might reveal. Additionally, Mantell admitted that he had no idea
regarding the defendant's suggestibility, eagerness to please, level of
intelligence, or propensity for mental illness. He also had no knowledge of the
police interview process in this case, or whether there was DNA present in this
case.

Mantell also explained that he had concerns when he reviewed the file in this
case because there was no description of the interrogation process that was
used, and he, therefore, was unaware of what tactics were used. He also stated
that there was nothing in the defendant's confession that would help him
"to understand the demeanor of the [defendant], what was motivating the
[defendant] to provide such a detailed and explicit account of punishable,
criminal offenses within such a relatively short period of time within that
setting." He further explained that he "didn't understand the context
in which [the confession] was achieved, and [he] didn't understand the
motivation of the defendant to convey that kind of information, apparently, in
a first interview with a police officer, presumably knowing or having some
general knowledge of what the legal consequences would be for doing that."
Mantell also stated that he had not reviewed or witnessed the in-court
testimony of the police in this case regarding the questioning of the
defendant.

Following the hearing, the court issued both an oral ruling and a written
memorandum of decision. The court found, inter alia, that the defendant had
failed to prove that Mantell was qualified to give an expert opinion on the
topic of false confessions, and that, "even if he were qualified, the
testimony proposed [was] incomplete and not directly applicable or relevant ...
to assist the jury in understanding the evidence or in determining whether ....
the defendant's testimony was false."

In Brant v. State (December
2014) the Supreme Court of Nevada held that proffer of expert testimony on
police interrogation techniques concerning defendant's allegedly false
confession was insufficient to establish that testimony was relevant and
reliable, and thus district court did not abuse its discretion in excluding
testimony. From the Supreme Court's opinion:

"Brant did not move to suppress his confession as involuntary. Rather, his
contention was, and is, that the latter part of his confession--the part where
he admits killing Seaton, in addition to finding her body and burying it in his
garage--is false. To support his false-confession theory, Brant designated an
expert on police interrogation techniques, Dr. Jorey Krawczyn. The district
court excluded Dr. Krawczyn's testimony on the grounds that it would not assist
the jury in understanding the evidence or deciding a fact in issue The district
court held a pretrial hearing on the admissibility of proposed expert witness
testimony. Dr. Krawczyn did not testify at the hearing or prepare a written
report. The district court "assume [d]" that Dr. Krawczyn "is
qualified in methods of police interrogation" based on defense counsel's
representation that Dr. Krawczyn is a clinical psychologist who "provides
lectures on interview and interrogation techniques utilizing body language and
neuro-linguistic dynamics" and was being offered as an expert on police
interrogation techniques... Counsel further represented that Dr. Krawczyn had
reviewed the audio-and videotapes of Brant's "interviews and
interrogations," including "at the house, the ... formalized
interrogation [at the police station] and also all the smoke breaks in
between." "Based upon what he saw in the review," Dr, Krawczyn
"determined detective Gallop is using some standardized questions that
04/27/2015 back to a 1956 polygraph operator's course and eventually progressed
in the Criminal Division"; Gallop may have "used the Reid
techniques," but without asking Gallop, the defense "cannot with 100
percent certainty say that is the technique." There is "a question
[of] is this a good technique to use with a brain injury" that "goes
to susceptibility and reliability of the statement." Summing up, defense
counsel stated that,

... there are identified factors or ... interrelated components that are part
of the concept of interrogative susceptibility that just better form the social
interaction between the interrogat[or and] the interviewee. This is what we
need the expert to go through, the factors and explain how these factors came
together.

The phenomenon of false confessions is a growing area of psychological and
social science," and we "do not foreclose the possibility that under
appropriate circumstances expert testimony [in this arena] could be relevant to
a defendant's case and helpful to a jury." For this court to find an abuse
of discretion in the exclusion of such testimony, though, there needed to be a
specific proffer, supported by scientific or other proof, citing particularized
facts, establishing that the testimony is relevant and reliable. The proffer in
this case does not provide us the information needed to undertake that
analysis.

This leaves the fact that, in interrogating Brant, Detective Gallop may have
used the Reid technique (or a 1956 polygraph operator's technique) and the
suggestion that a susceptible witness may make unreliable statements to
establish the relevance and reliability of Dr. Krawcyzn's testimony. But with
no evidence to establish a scientific or other recognized basis for challenging
the interrogation techniques utilized in this case--which Dr. Krawczyn should
have been able to identify if they were problematic, since he had complete
audio--and videotapes of Brant's interview and interrogation--we have only Dr.
Krawczyn's ipse dixit that the techniques possibly used may have
influenced Brant's confession. This is not enough to establish an abuse of
discretion in excluding such testimony.

Brant complains that he needed Dr. Krawczyn to establish that the phenomenon of
false confessions exists. But he accomplished that through Detective Gallop,
who acknowledged under cross-examination that false confessions can and do
occur. And, as discussed above, the proffer with respect to Dr. Krawczyn does
not establish what else Dr. Krawczyn might have said that would be of
assistance to the jury."

In an article published earlier this year, The Problem
of Interrogation-Induced False Confession: Sources of Failure in Prevention
and Detection, the authors, Dr. Richard Leo and Deborah Davis, continue
the trend of misrepresenting the tenets of The Reid Technique of Interviewing
and Interrogation.

On page 19 of the article the authors state, "Finally, specific
investigations of the effects of training in the "Behavior Analysis
Interview" developed and promoted by Inbau, Reid and colleagues in their
manuals and training materials and seminars have shown that the training
decreases accuracy relative to untrained controls (Kassin & Fong, 1999)."

The facts are exactly the opposite. When trained interviewers evaluated the
responses of 80 different subjects in real-life Behavior Analysis Interviews
they achieved an accuracy rate of 86% for truthful subjects and 83% for
deceptive subjects (see Criminal Interrogations and Confessions, 5th ed, page
102 - NSA study). Furthermore, it has been demonstrated in the last several
years that accuracy in detecting deception increases significantly with
real-life subjects when the interviewer understands the context in which the
interview was conducted, and when the interviewer has been properly trained
in the in the field of behavior symptom analysis (Blair 2010 and Hartwig 2006
- details on page 103 in Criminal Interrogation and Confessions).

In People v. Hernandez (2011) Dr. Leo testified that "The Reid Manual, which is the Bible of
modern interrogation, advises not to exceed four hours of interrogation
because longer interrogations might be seen as coercive." This statement is
false. In the 4th edition of Criminal Interrogation and Confessions on
page 423 we state the following:

Many
guilty suspects who confess after several hours of interrogation will claim:
"The pressure was so intense I would have said anything to bring it to an
end." A properly conducted interrogation that lasts 3 or 4 hours, for the
ordinary suspect, is certainly not so long as to cause the levels of
emotional or physical distress that constitute duress. However, if physical
coercion is involved, even a 30-minute interrogation may warrant such a bona
fide claim. The following guidelines are offered to evaluate claims of
duress:

1. Can
the excessive length of interrogation be explained by the suspect's behavior?
For example, did the suspect offer a series of different versions of events,
before offering the first incriminating statement? A suspect who has
maintained his innocence and made no incriminating statements for 8 or 10
hours has not offered any behavior to account for this lengthy period of
interrogation.

2. Did
the suspect physically or verbally attempt to seek fulfillment of biological
needs? If so, were such requests denied or used as leverage to obtain the
confession (e.g., "You can use your asthma inhaler after you confess."). A
suspect who made no such verbal requests or physical efforts to bring the
interrogation to a close has a much weaker case. In this instance, it would
appear that only in retrospect, after reviewing the interrogation in his
mind, or with an attorney, did the suspect decide that the conditions of the
interrogation were intolerable.

3. Were
there any threats made with respect to denying the suspect basic biological
needs unless he confessed (e.g., "You're not leaving here until you
confess—no matter how long it takes.").Click here for the complete decision.

In the case State
v. Wright (Jan. 2012) Dr. Solomon Fulero, Professor of Psychology at
Sinclair College, offered testimony about the Reid Technique - his testimony
(quoted below) provides a perfect example of how "false confession
experts" misrepresent what the Reid Technique is - oftentimes attributing to the
Reid Technique tactics that we teach should never be used by any
interrogator. After the quoted testimony of Dr. Fulero we provide
some brief comments (in blue).

"Dr. Fulero testified regarding the Reid technique--a police interrogation
method used to elicit confessions by making suspects believe that confessing
is in their best interest."

The Reid
Technique consists of a three phase process including Factual Analysis in
which the investigator attempts to determine possible suspects based on
motive, alibi, relationship to the victim, possessing the knowledge necessary
to commit the crime, the presence of any incriminating evidence, etc; a non-accusatory
interview designed to develop investigative and behavioral information to determine
investigative direction, followed by, when appropriate, an accusatory
interrogation. The interrogation component is last element in the Reid
Technique.

"According to Dr. Fulero, the Reid technique usually involves the use of
a bare interrogation room, containing only a desk and chairs, located within
a maze of hallways at a police station."

We emphasize
that in both the interview and the interrogation phase of the Reid Technique
be conducted in a quite, private environment with a minimum of distractions -
we never talk about locating the interview room "within a maze of
hallways at a police station."

(Confession voluntariness and the exclusion of
clinical psychologist at guilt phase (value of video recording))

In Loza v. Mitchell
(September 2014) the US Court of Appeals upheld the Ohio Supreme Court's
decision to admit the defendant's incriminating statements, and their decision
to exclude the testimony of Dr. Roger Fisher during the guilt phase. From the
Court of Appeals opinion:

"Loza argues that Detectives Knable and Jeffery threatened Dorothy Jackson
and Loza's unborn baby to coerce Loza into confessing. For example, the
detectives asked Loza if he "want[ed] Dorothy to have her baby in a
penitentiary" or if he wanted "[his] baby to be put up for adoption
to somebody you've never heard of" and told Loza that "[t]hat's
what's going to happen."

The detectives' references to Jackson were made in response to appellant's
repeated inquiries about what would happen to her. No threats were made
concerning Jackson or what would happen if appellant did not confess. The
detectives merely informed appellant of the possible consequences of his
actions. By the time the detectives were questioning appellant, Jackson had
already told the police about appellant's involvement in the murders. Appellant
sought the release of Jackson and he initiated the bargaining for her release.
Under these circumstances, the statements made to the detectives were voluntary
beyond doubt.

After reviewing the video recording and transcript of Loza's interrogation, we
conclude that the Ohio Supreme Court's determination that the detectives did
not threaten Dorothy Jackson or Loza's unborn child was not unreasonable. The
record supports the court's conclusion that "detectives merely informed
appellant of the possible consequences of his actions" when they told Loza
that both he and Dorothy Jackson could be imprisoned for their involvement in
the killings.... As the court noted, most of the detectives' references to
Jackson during the interrogation were in response to Loza's questions about
what would happen if Jackson were charged and prosecuted. Viewed in context,
the detectives' comments do not appear to be threats. Even if we believed that
some statements could be characterized as threats, our mere disagreement is not
enough to supersede the Ohio Supreme Court's factual determination on habeas
review.
Loza argues that the Ohio Supreme Court's decision upholding the trial court's
exclusion of the testimony of Dr. Roger Fisher, a clinical psychologist, at the
guilt phase of trial was contrary to and an unreasonable application of Crane
v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). In Crane,
the Supreme Court held that the "blanket exclusion" of evidence
concerning the circumstances of the defendant's confession on the ground that
it related only to voluntariness, not credibility, violated the defendant's
right to present a complete defense.

Loza sought to introduce testimony from Fisher at the guilt phase of trial to
help explain his confession... Loza's counsel stated that he expected Fisher to
testify that "Loza's acknowledgment of his participation in the offense
and his desire to take full responsibility would have been [the] product of
psychological coercion and duress brought upon by the statements of the police
officer that his girlfriend would be placed in the electric chair and this child
would be sent to never-never land." He said that he expected Fisher to
testify that Loza's "letters and repeated affirmations of [his confession]
would have been consistent with Mr. Loza's coerced desire to protect his
girlfriend and unborn child." The trial court prohibited Loza's counsel
from introducing Fisher's testimony at the guilt phase of trial because it had
already determined Loza's confession to be voluntary.... He stated that, in his
opinion, Loza would have lied to protect Dorothy Jackson and that he would have
done anything necessary to protect his unborn child. The Ohio Supreme Court
affirmed the trial court's decision to exclude Fisher's testimony at the guilt
phase.

Loza argues that the Ohio Supreme Court's decision upholding the exclusion of
Fisher's testimony was contrary to and an unreasonable application of Crane.
The Ohio Supreme Court reasoned:

The testimony of Dr. Fisher is clearly outside the holding of Crane. The
testimony of the witnesses in Crane related to how the physical and
psychological environment of the interrogation could have impacted the
voluntariness and credibility of the confession. Dr. Fisher's proffered
testimony relates to how Loza's individual, psychological makeup, independent
of the circumstances surrounding the interrogation, could have impacted the
voluntariness and credibility of the confession. Consequently, Crane
does not require the admission of Dr. Fisher's testimony.

The jury was able to accurately consider the credibility and weight of the
confession by watching it on videotape. They could see and hear the tone and
manner of the interrogation, the number of officers present, the physical
characteristics of the room, and the length of the interrogation. The jury had
the opportunity to evaluate the credibility of the appellant and to give the
confession its appropriate probative weight. Because the trial court already
had ruled on the voluntariness of the confession and the jury had the
opportunity to evaluate the credibility of the confession, the trial court did
not abuse its discretion by excluding the testimony of Dr. Fisher during the
guilt phase of the trial.

In State v. Glasscock
(September 2014) the Court of Appeals of Utah upheld the lower court's decision
that defendant's confession was not coerced. From their opinion:

"Glasscock argues that his confession was involuntary because the
detectives employed "coercive police interrogation tactics" to take
advantage of his unstable mental condition, and he argues that "[s]everal
of the [court's] findings of fact" supporting the court's denial of his
motion to suppress "were clearly erroneous." Specifically, Glasscock
maintains that he was "significantly impaired from alcohol, heroin, pain
pills" and that "he suffered from multiple disorders, including
'bipolar Type I,' 'post-traumatic stress,' and 'borderline personality.' "
And even though the detectives "knew that Glasscock had consumed a number
of impairing substances" that had "significantly impacted
[Glasscock's] memory," Glasscock contends that they employed a "false
friend technique" and other coercive strategies that "basically
forced [him] to say what they wanted [him] to say." After carefully
reviewing the evidence in the record, including the video of Glasscock's police
interrogation, we agree with the district court that Glasscock's confession was
not coerced.

Here, the district court found that Glasscock "was lucid and properly
oriented" during his interview with the detectives. Although Glasscock's
answers evinced some "hesitation at first," the court determined that
he "voluntarily cooperated" throughout the interview. The court also
determined that there "was insufficient evidence of intoxication, mental
defect, or coercion to justify excluding the interview," so the
"confession was fully knowing and voluntary." At Glasscock's urging,
we have reviewed the video recording of Glasscock's interrogation and find that
the district court's findings and conclusions are unassailable."

(Video of interrogation demonstrates that
juvenile did not make a knowing and intelligent waiver of his rights)

In re J.M., a Minor (People
v. J.M.) (April
2014) the Appellate Court of Illinois found that "J.M.'s
youth, his mental deficiencies, the DVD which shows not only his inability to
read his rights, but also his trust in Jany and Vespa despite their intention
to get a statement to use against him, and Dr. Cuneo's credible, expert
testimony, we find that the trial court's decision that respondent knowingly
and intelligently waived his Miranda rights is against the manifest
weight of the evidence."

In their opinion the court stated the following: "The
critical test used in determining whether an accused knowingly and
intelligently waived his or her rights is whether the words in the context used,
considering the age, background, and intelligence of the individual being
interrogated, convey a clear and understandable warning of all his or her
rights... Whether a waiver is knowing and intelligent is determined by the
particular facts and circumstances of each case, including the defendant's
background, experience, and conduct... Illinois courts have long recognized that
a defendant's mental capacity at the time of the alleged waiver must be
considered in determining whether his or her actions were knowing and
intelligent, and while mental deficiency alone does not render a statement
unintelligent, it is a factor that must be considered

Moreover, our supreme court has specifically stated that
"[t]he greatest care must be taken to assure that a juvenile's incriminating
statement was not the product of ignorance of rights or of adolescent fantasy,
fright or despair."... In addition,
our supreme court has explicitly stated that care must be taken with defendants
who are mentally deficient due to the following:

"[I]t is generally recognized that the mentally retarded are
considered more susceptible to police coercion or pressure than people of
normal intellectual ability, they are predisposed to answer questions so as to
please the questioner rather than to answer accurately, they are more likely to
confess to crimes they did not commit, they tend to be submissive, and they are
less likely to understand their rights." ....

Therefore, when dealing with a mentally deficient juvenile,
extreme care must be used to assure that he knowingly and intelligently waived
his rights.

... J.M. was also 13 years of age; however, his mental
capacity was that of a 7–year–old. His IQ was either 54 or 56,
which, ... puts him in the mild mentally retarded range. J.M. also attended special
education classes and was unable to explain the meaning of the word "silent"
with regard to the first Miranda warning. Additionally, an
expert testified that J.M. did not knowingly and intelligently waive his Miranda rights.

Here, Dr. Cuneo evaluated J.M. on two separate occasions:
first, to determine whether J.M. was fit to stand trial and, second, to
determine whether he could knowingly and intelligently waive his Miranda rights. Dr. Cuneo specifically
found that J.M., who only reads at a first-grade level and who was
intellectually in the bottom .04% of the population, was incapable of reading
or understanding his Miranda rights. Our own review of the
videotaped statement contained on the DVD shows that J.M. was incapable of
reading his rights.

J.M. could not even read the word "silent" in the first
warning. The DVD shows that after J.M. had trouble reading the word "silent,"
Officer Jany took over and read him his rights, trying to explain them along
the way. Jany also told J.M. that J.M.'s mother was outside and she just hoped
J.M. would be honest. After Jany read J.M. each of his rights, he told J.M. to
initial and then sign the form. J.M. complied. Even though J.M. said he watched
rights being given on television and had been read his rights "at the other
station" on a different occasion, our review of the DVD does little to
alleviate our concerns that J.M. did not fully appreciate that it was the
State's intention to use his statement to secure a conviction against him or
that he had the right to stand mute and request a lawyer. Instead, it appears
to us that J.M. was compliant and wanted to please the officers, which, as
previously discussed, is common among those suffering a mental deficiency."

(Video contradicts defendant's claim he
was too intoxicated to waive his rights)
In McNear v. State(March
2014) the Court of Appeals of Georgia rejected the defendant's claim that his
statements to police were voluntary and admissible. McNear asserted that his
statements were not voluntary because they were made over a six hour period of
time while he was "exhausted and still inebriated" from an evening of
heavy drinking. From the courts opinion:

"The record in this case shows that after conducting an evidentiary
hearing and reviewing the three video-recorded interviews, the trial court
issued a seven-page order in which it concluded that McNear "was advised
of each of his Miranda rights, he understood them, he voluntarily waived
then, and he thereafter gave his statements freely and voluntarily without any
hope of benefit or fear of injury." With regard to McNear's intoxication,
the trial court made the following finding:

While Defendant contends that he was intoxicated at the beginning of his
interview with the officers, Defendant's intoxication did not prevent him from
a making a rational, voluntary statement. Defendant was lucid, answered
questions forthrightly, and recognized the nature of his detainment. Officers
adequately explained to Defendant his rights several times throughout the
interview, and Defendant clearly understood what the officers were telling him.
Consequently, considering the totality of the circumstances, Defendant's
statements were voluntary in spite of his possible intoxication.

Based upon our review of the waiver form signed by McNear and the
video-recordings of his interviews with the police officers, "we find that
the trial court was authorized to conclude that, despite [McNear]'s possible
intoxication [and lack of sleep], he gave a voluntary statement and made a
knowing and intelligent waiver of his Miranda rights."

(Video identifies improper interrogation -
confession suppressed)
In People v. Hughes
(December 2013) the Appellate Court of Illinois, First District, Third Division
relied extensively on the video recorded interrogation to determine that the
defendant's confession should be inadmissible. The court stated that, "We
watched the video recording of Hughes' interrogation from start to finish. Our
bird's-eye view of what occurred before the first confession and, more
tellingly, between the time of the first confession and the second confession,
raises intolerable doubts about the validity of the second confession. The
methods the detectives used during the interrogation process contaminated this
confession. The totality of the circumstances underlying Hughes' second
confession establish that he lacked the ability to make a rational, unconstrained
decision to confess. Accordingly, we reverse and remand for a new trial."

From the court's opinion:

"Hughes was 19 years old at the time of the interrogation. He attended
school through the ninth grade, and received C's and D's. He used marijuana
five to six times a day and drank several glasses of cognac twice a week. His
arrests as a juvenile involved unlawful use of a weapon and criminal trespass
to a vehicle.

Hughes' age, intelligence, education, experience, and physical condition at the
time of the detention and interrogation address his character and capacity to
resist police coercion. Courts recognize that youth, education, and experience
increase susceptibility to police coercion. We agree that Hughes' youth (Hughes
was 19 years old at the time of interrogation) and lack of education (Hughes
only attended school to the ninth grade) heightened his vulnerability to the
coercive tactics used on him.

As to the length of the interrogation, Hughes was picked up in Michigan around
2 p.m. and the interrogation ended around 6 a.m. the following day. Just over
half of that time Hughes spent alone. Over the course of the interrogation,
Hughes' clarity and cadence of speech, alertness, and concentration
deteriorate. While in the afternoon he speaks freely, by the early morning
hours before and during the polygraph examination Hughes mumbles several
answers and appears exhausted.

Hughes also cites his regular drug use (smoking five or six joints a day, and
drinking four or five glasses of cognac twice a week) to show
involuntariness..... While nothing indicates that Hughes confessed as a result
of any withdrawal effects ... he did smoke marijuana immediately before the
polygraph exam.

Hughes next cites a number of untruths told by the detectives during the interrogation.
In limited circumstances, interrogators may use subterfuge in attempting to
elicit a confession. But where the State extracts a confession using deceptive
interrogation tactics calculated to overcome the defendant's free will,
suppression may be appropriate. ... Hughes cites numerous lies told by the
detectives, which the State does not contest in its brief: (i) that his
fingerprints were found at the scene; (ii) that numerous witnesses placed him
at the scene; (iii) that the leg wounds, and not the head wound, killed
Coleman; (iv) that he had failed the polygraph; and (v) that the court needed
to know Hughes was sorry for what he had done.

The detectives' claims of having nonexistent evidence is a common police
strategy, and while falsified evidence raises concerns as to voluntariness of a
confession, usually, courts go along with these ruses. While the false-evidence
ploys may be disturbing contextually and cumulatively, Hughes'
"failed" polygraph and being told after the polygraph that the court
needed to know Hughes was sorry for what he had done, weigh the heaviest
against voluntariness due to their proximity and causal connection to the
confession.

Moreover Detective Figueroa-Mitchell, the polygraph examiner, repeatedly
represented to Hughes that she was "here to help" him, and that if he
did not show remorse for shooting Coleman, his situation would only get worse.
She also told Hughes that she was "fighting" for him, and that--if he
showed remorse for shooting Coleman--she would testify in court on his behalf.

Looking at the totality of the circumstances, Detective Figueroa-Mitchell's
trickery and its cumulative effect, along with Hughes' character and the
circumstances of the interrogation, indicate that his confession to shooting
Coleman was not voluntary."

In People v. Kronenberger (March 2014)
the Appellate Court of Illinois, First District, First Division, upheld the
lower court's decision to admit the defendant's confession, relying on the
videotape of the interrogation to discredit the defendant's claims.

From the court's opinion: "The defendant makes a number of
arguments that his videotaped confession to the police was given involuntarily,
because the interrogation techniques used by police detectives to obtain it
included repeated threats, coercion and deception. Such repeated threats and
coercion, he asserts, precluded him from voluntarily waiving his Miranda rights or otherwise
voluntarily providing a statement. He further contends that certain comments
made by the detectives, to the extent that they contradicted and undermined his
right to remain silent and right to counsel, nullified the Miranda warnings provided to him.
Specifically, he points to comments made by the detectives during
interrogation, such as "your silence speaks volumes here. Your silence is
making you a dirty gang banging [expletive]," "[you will] swing for this," and
"the only [expletive] way you're going to get any of us out of here is to
[expletive] tell us what happened."

Viewing the complained-of statements in context of the
entirety of the interrogation, we find that the first two quoted remarks by the
detectives did not undermine or conflict with his right to silence, as the
defendant suggests. These two remarks, when viewed in context, show the
detectives' explanation to the defendant that the only version of the events
that the police possessed came from Emil's father, Edward, who had placed all
of the blame for the crime on the defendant. Indeed, our review of the
videotaped interrogation reveals that the detectives repeatedly tried to
convince the defendant to tell "the truth," to tell his "story," to take this
opportunity to "flip the script," to "help" himself, and to not let others tell
his side of the "story," while the defendant repeatedly lamented over the
seriousness of the situation by making statements that it was a "lose-lose
situation," and that he was "[expletive]," "done," going to get "locked up,"
"going to jail," and that his "future" was "gone." Nor do we find any of the
statements to be a nullification of the Miranda warnings provided to him.

... Based on our examination of the videotaped statement, we
find that the defendant's portrayal of the
interrogation as containing repeated threats and coercion to be an
out-of-context view of the detectives' comments. The running theme of the bulk
of the interrogation was that the police tried to convince the defendant to
tell his version of what happened and tried to appeal to his sense of doing the
"right thing." Throughout the interrogation, the detectives told the defendant
that they knew he was involved in the crime but did not think he was the
shooter, and that they thought Emil was actually the mastermind behind the
robbery and killing. We find that the detectives' references to an
"L–I–F–E" sentence, to "save" himself, and to avoid doing "a
lot of time" only highlighted the reality that he could avoid the maximum
sentence if he was not the shooter. Likewise, we find that the police did not
offer any inducement or promises of leniency to obtain the defendant's
confession. Rather, the alleged "promise of leniency," when viewed in context
on the videotape, shows that Detective Murray informed the defendant that the
detective did not "cut deals," that the detective's objective was to have the
"absolute truth in knowing that [he was] putting the right person in jail," and
that he wanted to be able to state with certainty that the defendant did not
personally discharge the firearm.... Indeed, during the interrogation, detectives
never misrepresented to the defendant that he would escape legal consequences
if he confessed, but instead, they candidly told the defendant that "no doubt"
he was in a bad situation, that no one would get a "free walk," but that he
should do the "right thing" by telling the police what had occurred. Moreover,
we find that, at the time of questioning, the defendant, who was 22 years old,
was no stranger to the criminal justice system and was well aware of the severity
of the circumstances in which he found himself. Under the totality of the
circumstances, we find that the defendant's subsequent videotaped confession
was voluntary.

(Video contradicts defendant's claim he
was too intoxicated to waive his rights)

In McNear
v. State (2014) the Court of Appeals of Georgia rejected the
defendant's claim that his statements to police were
voluntary and admissible. McNear asserted that his statements were not
voluntary because they were made over a six hour period of time while he was
"exhausted and still inebriated" from an evening of heavy drinking.From the courts opinion:

"The record in this case shows that after conducting an
evidentiary hearing and reviewing the three video-recorded interviews, the
trial court issued a seven-page order in which it concluded that McNear "was
advised of each of his Miranda rights, he understood them, he
voluntarily waived then, and he thereafter gave his statements freely and
voluntarily without any hope of benefit or fear of injury." With regard to
McNear's intoxication, the trial court made the following finding:

While Defendant contends that he was intoxicated at the
beginning of his interview with the officers, Defendant's intoxication did not
prevent him from a making a rational, voluntary statement. Defendant was lucid,
answered questions forthrightly, and recognized the nature of his detainment.
Officers adequately explained to Defendant his rights several times throughout
the interview, and Defendant clearly understood what the officers were telling
him. Consequently, considering the totality of the circumstances, Defendant's
statements were voluntary in spite of his possible intoxication.

Based upon our review of the waiver form signed by McNear and the
video-recordings of his interviews with the police officers, "we find that the
trial court was authorized to conclude that, despite [McNear]'s possible
intoxication [and lack of sleep], he gave a voluntary statement and made a
knowing and intelligent waiver of his Miranda rights." Click here for the complete
decision.

(Value
of recording an interrogation to demonstrate voluntariness)

In
Hansen
v. Johnson (2014) the US District Court, S.D. California found that
reviewing the electronic recording of the defendant's interrogation and
confession to be critical in evaluating the voluntariness of the statement.From their opinion:

"Applying these Supreme Court principles, the Court of Appeal first noted that
Petitioner was not subject to any "overt physical brutality."... However, in
recognition that police coercion can be mental, the Court of Appeal analyzed
"whether psychological coercion, by means of an implied promise of leniency,
occurred." ... The Court of Appeal next examined the two statements made by
Detective Smith to Petitioner while driving to the police station following her
arrest. With respect to the first statement ( i.e., "the next hour ...
would be the most important hour of [her] life"), the Court of Appeal concluded
that the "statement is neither an express nor implied promise of leniency.
Rather, it appears [Detective] Smith was emphasizing the seriousness of the
situation. Although one could interpret the statement as implying that now was
the time to start being truthful, such an implication does not constitute
psychological coercion."

The Court of Appeal found the second statement ( i.e.,
"Hansen's behavior would affect how she spen[t] the rest of her life") to be
"more problematic."... The Court of
Appeal reasoned that the second statement arguably implied that Hansen might or
might now spend the rest of her life in prison, depending on how she conducted
herself during the interview. Smith's postconfession attempts to clarify that
he did not intend this implication do not cure the problem, since Hansen had
already confessed; an after-the-fact explanation cannot remedy an improper
inducement.

The Court of Appeal then looked at the totality of the
circumstances to determine whether "the implied promise that if Hansen were to
confess, she would not spend the rest of her life in prison, motivated her to
confess-that is, whether such inducement was sufficient 'to overbear [her] will
to resist and bring about [a] confession[ ] not freely selfdetermined.' ... The
Court of Appeal ultimately concluded Detective Smith's second statement did not
coerce an involuntary confession. In reaching this conclusion, the Court of
Appeal stated:

The interrogation was recorded on a DVD player. Throughout
the interview, Hansen who was one month shy of her 18th birthday, displayed a
calm and rational demeanor. She showed emotion only during breaks and at the
end of the interview. Hansen's responses and her level of engagement in the
interview indicate that she understood what was being discussed and that she
was aware of her predicament. She also told the detectives that she was
familiar with her Miranda rights. The interview lasted about 80 minutes
and thus was not excessive in length. The detectives removed Hansen's handcuffs
for the interview. Throughout the interview, the detectives' tone and demeanor
were civil and professional. The detectives did not use deceptive practices
during the interview. In fact, Hansen remarked during the interview that the
detectives were "both very nice," and said, "I think you guys are the most straightforward
people I've seen."

The
DVD recording of the interview supports the trial court's finding that Hansen
did not confess because of coercion applied by the police, but rather, that she
confessed freely and voluntarily. After independent review of the interrogation
DVD, we agree."

In People v. Hughes (2013) the
Appellate Court of Illinois, First District, Third Division relied extensively
on the video recorded interrogation to determine that the defendant's
confession should be inadmissible.The court stated that, "We watched the video recording of Hughes'
interrogation from start to finish. Our bird's-eye view of what occurred before
the first confession and, more tellingly, between the time of the first
confession and the second confession, raises intolerable doubts about the
validity of the second confession. The methods the detectives used during the
interrogation process contaminated
this confession. The totality of the circumstances underlying Hughes' second
confession establish that he lacked the ability to make a rational,
unconstrained decision to confess. Accordingly, we reverse and remand for a new
trial."

From the court's opinion:

"Hughes was 19 years old at the time of the interrogation.
He attended school through the ninth grade, and received C's and D's. He used
marijuana five to six times a day and drank several glasses of cognac twice a
week. His arrests as a juvenile involved unlawful use of a weapon and criminal
trespass to a vehicle.

Hughes'
age, intelligence, education, experience, and physical condition at the time of
the detention and interrogation address his character and capacity to resist
police coercion. Courts recognize that youth, education, and experience
increase susceptibility to police coercion. We agree that Hughes' youth (Hughes
was 19 years old at the time of interrogation) and lack of education (Hughes
only attended school to the ninth grade) heightened his vulnerability to the
coercive tactics used on him.

Hughes
also cites his regular drug use (smoking five or six joints a day, and drinking
four or five glasses of cognac twice a week) to show involuntariness.....While nothing indicates that Hughes
confessed as a result of any withdrawal effects ... he did smoke marijuana
immediately before the polygraph exam.

Hughes next cites a number of
untruths told by the detectives during the interrogation. In limited
circumstances, interrogators may use subterfuge in attempting to elicit a
confession. But where the State extracts a confession using deceptive
interrogation tactics calculated to overcome the defendant's free will,
suppression may be appropriate. ... Hughes cites numerous lies told by the
detectives, which the State does not contest in its brief: (i) that his
fingerprints were found at the scene; (ii) that numerous witnesses placed him
at the scene; (iii) that the leg wounds